Cap 374 s 39C Provision of specimens for alcohol analysis* (Road Traffic Ordinance)

Contents of Section

Chapter:	374	Title:	Road Traffic Ordinance	Gazette Number:	E.R. 2 of 2012
Section:	39C	Heading:	Provision of specimens for alcohol analysis*	Version Date:	02/08/2012

(1) A police officer may require a person whose screening breath test indicates that the proportion of alcohol in that person's breath is likely to exceed the prescribed limit or who fails to provide a specimen for the screening breath test with reasonable excuse-

(a) to provide 2 specimens of breath for analysis by means of an approved breath analysing instrument; or

(b) to provide a specimen of blood or urine for a laboratory test.

(2) The police officer shall decide that the person is to provide a specimen of blood or urine if-

(a) the police officer has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required; or

(b) at the time the requirement is made, an approved breath analysing instrument is not available at the breath test centre, the police station or the hospital where the requirement is made or it is for any other reason not practicable to use an approved breath analysing instrument. (Amended 50 of 1999 s. 4)

(3) Evidence of the proportion of alcohol in a specimen of breath, blood or urine may be given by the production of a document which purports to be either-

(a) a statement automatically produced by the approved breath analysing instrument by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by an approved operator (which may but need not be contained in the same document as the statement) certifying that the statement relates to a specimen provided by the accused at the date and time shown in the statement and that the approved breath analysing instrument was operated correctly and properly when the specimen of breath was being taken; or

(b) a certificate under section 25 of the Evidence Ordinance (Cap 8) as to the proportion of alcohol found in a specimen of blood or urine identified in the certificate.

(4) Evidence that a specimen of blood was taken from the accused with his consent by a medical practitioner, a registered nurse or an enrolled nurse may be given by the production of a document certifying that fact and purporting to be signed by the medical practitioner, the registered nurse or the enrolled nurse, as the case may be. (Amended 50 of 1999 s. 4)
(5) Evidence that a specimen of urine was taken from the accused by a police officer or a medical practitioner may be given by the production of a document certifying that fact and purporting to be signed by a police officer or a medical practitioner, as the case may be.
(6) A requirement under this section to provide a specimen of breath can only be made at a breath test centre, a police station or a hospital. (Amended 50 of 1999 s. 4)
(7) A requirement under this section to provide a specimen of blood can only be made at a breath test centre, a police station or a hospital. (Amended 50 of 1999 s. 4)
(8) A requirement under this section to provide a specimen of urine can only be made at a breath test centre, a police station or a hospital and the police officer making the requirement shall decide whether the specimen of urine is to be provided at a breath test centre, a police station or a hospital. (Amended 50 of 1999 s. 4)
(9) The police officer requiring the provision of a specimen other than a specimen of breath under this section shall decide whether a specimen is to be of blood or of urine, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.
(10) If the police officer requires a person to provide a specimen of blood, the specimen of blood shall be taken by a medical practitioner, registered nurse or enrolled nurse specified by the police officer. (Amended 50 of 1999 s. 4)
(11) Subject to subsection (11A), a specimen of blood must not be taken from a person unless the person consents to its being taken and it is so taken. (Replaced 24 of 2011 s. 12)
(11A) A police officer may request a medical practitioner to take a specimen of blood from a person, if-

(a) he or she is a person the police officer is entitled to require-

(i) to provide a specimen of breath under section 39B(1)(b) or (2); or

(ii) to provide a specimen of blood under subsection (1)(b) or (2); and

(b) it appears to the police officer that-

(i) (if it is a person referred to in paragraph (a)(i)) he or she may be incapable of providing a specimen of breath and of giving a valid consent to the taking of a specimen of blood, and (if it is a person referred to in paragraph (a)(ii)) he or she may be incapable of giving a valid consent to the taking of a specimen of blood; and

(ii) the incapacity is attributable to medical reasons. (Added 24 of 2011 s. 12)

(11B) It is lawful for a medical practitioner to whom a request is made under subsection (11A), if the medical practitioner thinks fit-

(a) to take a specimen of blood from the person; and

(b) to provide the specimen to the police officer who made the request. (Added 24 of 2011 s. 12)

(11C) A specimen of blood may be taken pursuant to a request under subsection (11A) only at a breath test centre, a police station or a hospital. (Added 24 of 2011 s. 12)
(11D) If a specimen of blood is taken pursuant to a request under subsection (11A), it must not be subjected to a laboratory test unless the person from whom it was taken-

(a) has been informed that it was taken;

(b) has been required by a police officer to give consent to the analysis of the specimen for the purpose of evidence in the relevant investigation; and

(11E) A police officer who makes a requirement referred to in subsection (11D)(b) must warn the person at the time of making the requirement that a failure to give consent may render the person liable to prosecution. (Added 24 of 2011 s. 12)
(11F) Evidence that a specimen of blood was taken from a person referred to in subsection (11A) by a medical practitioner may be given by the production of a document certifying that fact and purporting to be signed by the medical practitioner. (Added 24 of 2011 s. 12)
(11G) Evidence that a specimen of blood taken from a person under subsection (11B) was subjected to a laboratory test only after the person from whom it was taken was informed that it was taken and the person consented to the laboratory test may be given by the production of a document certifying that fact and purporting to be signed by the police officer who made the requirement referred to in subsection (11D)(b). (Added 24 of 2011 s. 12)
(12) Evidence of the proportion of alcohol in a specimen of breath, blood or urine provided by the accused shall be evidence that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than that in the specimen.
(13) Where, at the time a specimen of blood or urine was provided by the accused, he asked to be provided with such a specimen, evidence of the proportion of alcohol found in the specimen is not admissible on behalf of the prosecution unless-

(a) the specimen in which the alcohol was found is one of 2 parts into which the specimen provided by the accused was divided at the time it was provided; and

(b) the other part was supplied to the accused.

(13A) If an accused from whom a specimen of blood was taken under subsection (11B), at the time he or she consented to its analysis, asked to be provided with a part of that specimen, evidence of the proportion of alcohol found in the specimen is not admissible on behalf of the prosecution unless-

(a) the specimen in which the alcohol was found is one of 2 parts into which the specimen taken from the accused was divided at the time it was taken; and

(b) the other part was supplied to the accused. (Added 24 of 2011 s. 12)

(14) The person shall provide the specimen of urine within one hour of being required to provide it and after the provision of a previous specimen of urine.
(15) A person who, without reasonable excuse, fails to provide a specimen when required to do so under this section or fails to give consent under subsection (11D)(b) commits an offence and is liable- (Amended 24 of 2011 s. 12)

(a) on conviction on indictment to a fine at level 4 and to imprisonment for 3 years; and

(b) on summary conviction on a first offence to a fine at level 3 and to imprisonment for 6 months and on a second or subsequent conviction or on a conviction subsequent to a conviction under section 39, 39A or 39B to a fine at level 4 and to imprisonment for 12 months.

(16) If a court or magistrate convicts a person of an offence under subsection (15), the court or magistrate shall order that the person be disqualified in accordance with subsection (16A) or (16B) unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified. (Replaced 23 of 2008 s. 10)
(16A) Subject to subsection (16B), the person is to be disqualified-

(a) in the case of a first conviction, for a period of not less than 2 years; and

(b) in the case of a second or subsequent conviction, or a conviction subsequent to a conviction under section 39, 39A or 39B, for a period of not less than 5 years. (Added 23 of 2008 s. 10. Amended 19 of 2010 s. 12)

(16B) If the court or magistrate has ordered the person to attend and complete a driving improvement course under section 72A(1A), the person is to be disqualified-

(a) in the case of a first conviction, for a period of not less than 2 years, or until the person has attended and completed the course at his own cost, whichever is the later; and

(b) in the case of a second or subsequent conviction, or a conviction subsequent to a conviction under section 39, 39A or 39B, for a period of not less than 5 years, or until the person has attended and completed the course at his own cost, whichever is the later. (Added 23 of 2008 s. 10. Amended 19 of 2010 s. 12)

(16C) For the purposes of subsection (16), a person to whom subsection (16B) applies is disqualified for a shorter period if he is disqualified-

(a) in the case of a first conviction, for a period of less than 2 years, or until the person has attended and completed the driving improvement course at his own cost, whichever is the later; and

(b) in the case of a second or subsequent conviction, or a conviction subsequent to a conviction under section 39, 39A or 39B, for a period of less than 5 years, or until the person has attended and completed the driving improvement course at his own cost, whichever is the later. (Added 23 of 2008 s. 10. Amended 19 of 2010 s. 12)

(17) The court or magistrate may deal with the offence as a first offence, or the conviction of an offence as a first conviction if, as at the date on which the offence was committed, at least 5 years have elapsed since the person's last conviction under subsection (15) or section 39, 39A or 39B. (Replaced 23 of 2008 s. 10)
(18) A police officer shall warn a person at the time of requiring a specimen under this section that a failure to provide it may render him liable to prosecution.
(19) A person fails to provide a specimen of breath, blood or urine for analysis or laboratory test unless the specimen-

(a) is sufficient to enable the analysis or laboratory test to be carried out; and

(b) is provided in a way to enable the objective of the analysis or laboratory test to be satisfactorily achieved.

(20) The Commissioner of Police may by notice in the Gazette designate a place or vehicle to be a breath test centre. (Added 50 of 1999 s. 4)
(21) For the avoidance of doubt, a notice under subsection (20) is not subsidiary legislation. (Added 50 of 1999 s. 4)
(22) For the purposes of this section, registered nurse(漁�U�@�h) and enrolled nurse(�n�O�@�h) have the respective meanings assigned to them by section 2 of the Nurses Registration Ordinance (Cap 164). (Added 50 of 1999 s. 4)
(Added 39 of 1995 s. 7)_________________________________________________________________________________________
Note:
* (Amended 24 of 2011 s. 12)