August 2009 - The Police Association Victoria

8 Legal News
Drug and Alcohol Testing
– members’ rights and obligations
In April 2007 amendments were made to the Police Regulation Act 1958, to allow
for statutory testing of members for Alcohol and Drugs of Dependence. In 2008 the
Victoria Police Force introduced policy that supported the law on testing for Alcohol
and Drugs of Dependence.
The introduction of a testing
regime within the Police
Regulation Act 1958 does not
give the relevant delegate of the
Chief Commissioner “blanket
authority” to test members for the
existence of Alcohol and Drugs
of Dependence. Under the law
the Chief Commissioner may
in accordance with the Police
Regulations 2003, direct a member
to do any one or more of:
• Furnishing a sample of breath;
• Furnish a sample of urine; or
• Allow a registered medical
practitioner to take from the member,
a sample of the members blood
For the purpose of testing for the
presence of alcohol or a drug of
dependence.
This direction which can be made
either orally or in writing, can only
be administered in cases where the
Chief Commissioner reasonably
believes that the member:
• Because of the consumption of
alcohol or a drug of dependence
is incapable or inefficient in the
performance of their duties; or
• Has been involved in a critical
incident; or
• The testing of the member for
the existence of alcohol or drug
of dependence is for the good order
or discipline of the force.
It is apparent that the most
likely occasion where a member
is to be the subject of a direction
to provide a sample, be it breath,
urine or blood, will be as a result
of a “critical incident”. A “critical
incident” is considered to be any
of the following situations where
the member involved is on duty and
involved in an incident that:
• Results in death or serious injury
to a person;
• The discharge of a firearm;
• The use of force;
• The use of a motor vehicle either
as driver or passenger in the course
of your duties; or
• Where a death occurs to a person
who is in the custody of a member
at that time.
What is unclear from our experience
is the application of the other
provisions relating to the grounds
where a direction to obtain a sample
can be made. Clouding the authority
even further is that a direction
cannot be given unless the results
of the testing may be relevant to:
• The management of the members
performance of duties;
• An investigation undertaken in
respect of the member that falls
within Parts IV and IVA of the Police
Regulation Act 1958; or
• Any proceeding arising out of, or in
connection with, any investigation
that emanates from Parts IV and IVA.
Members compliance obligations
are relatively strict however, there
are in certain circumstances time
limitations. Should a member be
involved in a critical incident, a
direction to provide a sample (blood,
urine or breath) must have been made
within three (3) hours of the incident
occurring. In relation to other critical
incident situations, (i.e. the member is
not specifically involved perhaps the
passenger in a police vehicle involved
in an on duty collision) then the
direction to provide the sample can
be given within a reasonable time
after the critical incident.
Areas of the application of the law
and policy in relation to this process
that members should be mindful
of are:
• Unjustifiable refusal to provide
a sample;
• Direction given to a member
by a non authorized person;
• Direction to provide a sample outside
of statutory time frames;
• Obtaining of samples that not
lawfully justified; and
• The taking of a sample in a manner
that does not afford the member
privacy, such as in an open area
and by multiple “collectors”.
Our experience in dealing with
members who have been the subject
of Testing of members for Alcohol
or Drugs of Dependence has been
limited and we would encourage
members to contacts us, should they
wish, to discuss their experiences.
How do I gain Legal Assistance?
Rule 75(d) of
The Constitution
At the discretion of The Executive, members may be granted legal assistance when the members make application
under Article 69(d). Except in urgent cases, ALL addresses pursuant to Article 69(d) will be heard on the FIRST
Tuesday of each month. Because of the requirement of presenting personally before The Executive for 69(d)
applications, and that The Executive meet regularly on the FIRST Tuesday, time has been allocated on these Tuesdays.
Should you wish to make such an application, please write to the Secretary outlining the reasons for your request and
include any supportive documents and statements so that proper deliberations may ensue. You will be advised of the time
of your appointment with The Executive.
August 2009 The Police Association Journal
www.tpav.org.au