Road Safety (Alcohol Interlocks) Act 2002

i Road Safety (Alcohol Interlocks) Act 2002 Act No. 1/2002 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—ROAD SAFETY ACT 1986 3 3. Definitions 3 4. Interpretative provisions 3 5. Accredited agencies 4 6. Provisions about cancellation and disqualification 4 7. New sections 50AAA to 50AAJ inserted 4 50AAA. Direction to impose alcohol interlock condition 4 50AAB. When an alcohol interlock condition can be removed 6 50AAC. Appeals against direction or period specified in direction 8 50AAD. Offences and immobilisation orders 9 50AAE. Approval of types of alcohol interlocks and alcohol interlock suppliers 11 50AAF. Conditions on approvals 15 50AAG. Guidelines 16 50AAH. Cancellation of approval of types of alcohol interlocks 17 50AAI. Cancellation of approval of alcohol interlock supplier 19 50AAJ. Review by Tribunal 21 8. Previous convictions 22 9. Requirement to carry licence and to have zero blood alcohol 23 10. New section 103B inserted 23 103B. Application of amendment made by the Road Safety (Alcohol Interlocks) Act 2002 23 PART 3—SENTENCING ACT 1991 25 11. New section 87P inserted 25 87P. Interpretation 25 12. Cancellation or suspension of driver licence 26 13. New sections 89A to 89D inserted 26 89A. Direction to impose alcohol interlock condition 26 89B. Removal of alcohol interlock condition 28 -- 1 of 36 -- Section Page ii 89C. Appeals against direction or period specified in direction 30 89D. Offences and immobilisation orders 30 14. New section 126B inserted 33 126B. Application of amendment made by the Road Safety (Alcohol Interlocks) Act 2002 33 ═══════════════ ENDNOTES 34 -- 2 of 36 -- 1 Road Safety (Alcohol Interlocks) Act 2002 † [Assented to 26 March 2002] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is to amend the Road Safety Act 1986 and the Sentencing Act 1991— (a) to empower the Magistrates' Court to require the use of alcohol interlocks as a condition of the granting by the Roads Corporation of a driver licence or permit to certain disqualified drivers; and Victoria No. 1 of 2002 -- 3 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 2 (b) to do so for the purposes of rehabilitating such drivers and minimising harm to the community. 2. Commencement (1) This Part comes into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision of this Act does not come into operation before 1 August 2002, it comes into operation on that day. __________________ s. 2 -- 4 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 3 PART 2—ROAD SAFETY ACT 1986 3. Definitions (1) In section 3(1) of the Road Safety Act 1986 insert the following definitions— ' "alcohol interlock", in relation to a motor vehicle, means a device capable of— (a) analysing a breath sample for the presence of alcohol; and (b) if it detects more than a certain concentration of alcohol, preventing the motor vehicle from being started; "alcohol interlock condition" means a condition imposed on a driver licence or permit in accordance with a direction under section 50AAA; "approved alcohol interlock" means an alcohol interlock of a type approved by the Corporation under section 50AAE(3); "approved alcohol interlock supplier" means a person or body approved by the Corporation under section 50AAE(5);'. (2) In section 3(1) of the Road Safety Act 1986, in the definition of "accredited agency", for "sections 50 and 50A", substitute "sections 50, 50AAB(5) and 50A". 4. Interpretative provisions In section 48 of the Road Safety Act 1986, after sub-section (1), insert— '(1AA) Despite sub-section (1)(b) and section 3AA, a person is not to be taken to be in charge of a motor vehicle merely because the person attempts, or intends, to start the motor vehicle if the motor vehicle has an approved s. 3 See: Act No. 127/1986. Reprint No. 6 as at 1 December 2000 and amending Act Nos 19/1991, 89/1991, 79/2000, 4/2001, 23/2001 and 54/2001. LawToday: www.dms. dpc.vic. gov.au -- 5 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 4 alcohol interlock installed and maintained by an approved alcohol interlock supplier or a person or body authorised by such a supplier. Note: For "approved alcohol interlock" and "approved alcohol interlock supplier", see section 3(1).'. 5. Accredited agencies In section 49A(1)(a) of the Road Safety Act 1986, for "sections 50 and 50A", substitute "sections 50, 50AAB(5) and 50A". 6. Provisions about cancellation and disqualification In section 50 of the Road Safety Act 1986— (a) at the foot of sub-section (4A) insert— "Note: In some cases, the court is not required to have regard to the report referred to in sub-section (4B)(a): see section 50AAA(3)(a)."; (b) at the foot of sub-section (4B) insert— "Note: In some cases, the person is not required to obtain the report referred to in paragraph (a): see section 50AAA(3)(a)."; (c) at the foot of sub-section (5) insert— "Note: The court may, in making the order sought, be permitted or required to direct the Corporation to impose an alcohol interlock condition on a driver licence or permit granted to the applicant: see section 50AAA.". 7. New sections 50AAA to 50AAJ inserted After section 50 of the Road Safety Act 1986 insert— '50AAA. Direction to impose alcohol interlock condition (1) This section applies if— (a) a person was disqualified under section 50 from obtaining a driver licence or permit because he or she was s. 5 -- 6 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 5 convicted or found guilty of an offence under section 49(1)(a) (other than an offence involving only drugs) or under section 49(1)(b), (c), (d), (e), (f) or (g); and (b) the offence was not an accompanying driver offence; and (c) the person makes an application under section 50(4) for an order as to the issue of a driver licence or permit; and (d) the court considers it appropriate to make the order. (2) If the offence— (a) was a first offence; and (b) in the case of an offence under section 49(1)(b), (f) or (g), the concentration of alcohol in the person's blood at the relevant time was 0⋅15 grams or more per 100 millilitres of blood— on making the order, the court may direct the Corporation that it can only grant the person a driver licence or permit that is subject to a condition that the person must only drive a motor vehicle with an approved alcohol interlock installed and maintained by an approved alcohol interlock supplier or a person or body authorised by such a supplier. Note: For "approved alcohol interlock" and "approved alcohol interlock supplier", see section 3(1). (3) If the offence was not a first offence— (a) despite section 50(4A) and (4B), the person is not required to obtain, and the court is not required to have regard to, a s. 7 -- 7 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 6 report referred to in section 50(4B)(a); and (b) on making the order, the court must direct the Corporation that it can only grant the person a driver licence or permit that is subject to a condition that the person must only drive a motor vehicle with an approved alcohol interlock installed and maintained by an approved alcohol interlock supplier or a person or body authorised by such a supplier. 50AAB. When an alcohol interlock condition can be removed (1) If the court gives a direction under section 50AAA(2) or (3)(b), it must specify in the direction a period during which the person concerned cannot apply to the court for the removal of an alcohol interlock condition imposed on his or her driver licence or permit. (2) If the direction is given under section 50AAA(2), the specified period must be at least 6 months after the condition is imposed. (3) If the direction is given under section 50AAA(3)(b), the specified period must be— (a) at least 6 months after the condition is imposed if— (i) the offence concerned was a second offence; and (ii) in the case of an offence under section 49(1)(b), (f) or (g), the concentration of alcohol in the person's blood at the relevant time s. 7 -- 8 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 7 was less than 0⋅15 grams per 100 millilitres of blood; or (b) in any other case, at least 3 years after the condition is imposed. (4) The Corporation must not remove an alcohol interlock condition imposed on a person's driver licence or permit unless the court orders, on the application of the person, that the condition be removed. (5) Within 28 days before applying for the removal of an alcohol interlock condition imposed on a person's driver licence or permit, the person must obtain from an accredited agency a report that— (a) covers all of the period, but at least 6 months, since an approved alcohol interlock was installed by an approved alcohol interlock supplier, or a person or body authorised by such a supplier, in a motor vehicle driven by the person during that period; and (b) includes— (i) an assessment by each approved alcohol interlock supplier who maintained or authorised a person or body to maintain the approved alcohol interlock during that period on the extent to which the person complied with the manufacturer's instructions for using the approved alcohol interlock; and (ii) an assessment of the person's use of alcohol during that period; and s. 7 -- 9 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 8 (iii) the last licence restoration report obtained by the person. (6) In determining whether to make an order to remove an alcohol interlock condition imposed on a person's driver licence or permit— (a) the court must hear any relevant evidence tendered by either the person or the Chief Commissioner of Police and any evidence of a registered medical practitioner required by the court; and (b) the court, without limiting the generality of its discretion, must have regard to— (i) the person's use of alcohol in the period since the condition was imposed; and (ii) the person's physical and mental condition at the time of the hearing of the application; and (iii) the effect that the making of the order may have on the safety of the person or the public; and (iv) any report obtained under sub-section (5). 50AAC. Appeals against direction or period specified in direction (1) If the court gives a direction under section 50AAA(2) or (3)(b), the person in respect of whom the direction is given may appeal to the County Court under section 83 of the Magistrates' Court Act 1989 against— (a) in the case of a direction under section 50AAA(2)— s. 7 -- 10 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 9 (i) the giving of the direction; or (ii) the period specified in the direction during which the person cannot apply for the removal of an alcohol interlock condition if that period is more than 6 months; or (b) in the case of a direction under section 50AAA(3)(b)—the period specified in the direction during which the person cannot apply for the removal of an alcohol interlock condition if that period is more than the minimum period set out in section 50AAB(3)(a) or (b) (whichever applies)— as if the direction were a sentencing order of a kind referred to in section 83 of the Magistrates' Court Act 1989. (2) That Act applies with respect to the appeal with any necessary modifications. 50AAD. Offences and immobilisation orders (1) A person whose driver licence or permit is subject to an alcohol interlock condition is guilty of an offence if— (a) the person breaches that condition; or (b) the person drives a motor vehicle with an approved alcohol interlock in accordance with that condition but the motor vehicle has been started— (i) with the approved alcohol interlock disengaged; or (ii) in a way that does not comply with the manufacturer's s. 7 -- 11 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 10 instructions for the use of the approved alcohol interlock; or (iii) in a way other than by the person blowing directly into the appropriate part of the approved alcohol interlock. Note: Sections 50AAH and 50AAI may affect whether a person has breached the condition. (2) A person who is guilty of an offence against sub-section (1) is liable to a fine of not more than 30 penalty units or to imprisonment for a term of not more than 4 months. (3) If— (a) a person breaches an alcohol interlock condition by driving a motor vehicle with a type of alcohol interlock— (i) the approval of which is cancelled under section 50AAH; or (ii) that is installed or maintained by a person or body whose approval as an alcohol interlock supplier is cancelled under section 50AAI; or (iii) that is installed or maintained by a person or body who would be authorised by an approved alcohol interlock supplier except that the supplier's approval is cancelled under section 50AAI; and (b) the person is charged with an offence against sub-section (1)(a) in respect of that breach— it is a defence if the person proves that he or she reasonably believed at the time of the breach that the type of alcohol interlock was s. 7 -- 12 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 11 an approved alcohol interlock, or the person or body was an approved alcohol interlock supplier or authorised by such a supplier, as the case may be. (4) A court finding a person guilty, or convicting a person, of an offence against sub-section (1)(b) may, if the court considers it appropriate to do so, order that the motor vehicle concerned be immobilised (whether by wheel clamps or any other means) for a period specified in the order of up to 12 months. (5) An order under sub-section (4) may be made subject to specified conditions. (6) The court may make an order under sub-section (4) whether the motor vehicle is owned by the offender or another person. (7) If the court considers that another person, who is not present at the hearing concerning the making of an order under sub-section (4), may be substantially affected by such an order, the court must issue a summons to that other person to show cause why the order should not be made. (8) On the return of the summons, the court may, after hearing the evidence brought before it, make or refuse to make the order. 50AAE. Approval of types of alcohol interlocks and alcohol interlock suppliers (1) A person or body may apply to the Corporation for— (a) approval of a type of alcohol interlock; or (b) approval as an alcohol interlock supplier— s. 7 -- 13 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 12 for the purposes of this Act. (2) An application must be made in the manner and form determined in writing by the Corporation and must be accompanied by— (a) the prescribed application fee (if any); and (b) any other things that are prescribed. (3) The Corporation may approve, in writing, a type of alcohol interlock if it is satisfied that— (a) the person or body applying for the approval has a right to sell or lease the type of alcohol interlock; and (b) the type of alcohol interlock is suitable to be approved for the purposes of this Act having regard to— (i) its effectiveness in preventing a motor vehicle from being started if it detects more than a certain concentration of alcohol; and (ii) the extent to which it is resistant to tampering; and (iii) its capacity to record information about its use; and (iv) any other matter the Corporation considers relevant. (4) In considering whether to approve a type of alcohol interlock, the Corporation must apply the guidelines for the approval of types of alcohol interlocks made by the Corporation under section 50AAG. s. 7 -- 14 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 13 (5) The Corporation may approve, in writing, a person or body as an alcohol interlock supplier if it considers it appropriate to do so having regard to— (a) whether— (i) the person or body; and (ii) the employees or agents (if any) of the person or body who install or maintain approved alcohol interlocks— are fit and proper persons to install and maintain approved alcohol interlocks; and (b) the relevant qualifications and experience of the person or body and of those employees and agents (if any) of the person or body; and (c) the arrangements and standards put in place by the person or body for— (i) installing approved alcohol interlocks; and (ii) maintaining approved alcohol interlocks including regular inspections, re-calibration and the recording of information about its use; and (d) the arrangements put in place by the person or body for installing and maintaining approved alcohol interlocks in rural areas; and (e) the adequacy for the purposes of this Act of— s. 7 -- 15 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 14 (i) the premises, equipment and resources of the person or body; and (ii) the record-keeping and reporting arrangements of the person or body; and (iii) the arrangements of the person or body for handling complaints; and (f) the ability of the person or body to comply, and record its compliance, with the guidelines for the installation or maintenance of approved alcohol interlocks made by the Corporation under section 50AAG; and (g) the terms and conditions on which the person or body supplies, or intends to supply, approved alcohol interlocks to customers, or a particular class of customer, including the cost of the approved alcohol interlock, its installation and regular maintenance; and (h) any other matter the Corporation considers relevant. (6) The Corporation must not approve a person or body as an alcohol interlock supplier unless it is satisfied that the person or body will provide concessions to assist with the cost of installation and regular maintenance of an approved alcohol interlock to— (a) classes of persons specified by the regulations for the purposes of this sub- section; or (b) if the regulations do not specify classes of persons for the purposes of this sub- section, persons who hold a health care s. 7 -- 16 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 15 card (within the meaning of the Social Security Act 1991 of the Commonwealth). (7) In considering whether to approve a person or body as an alcohol interlock supplier, the Corporation must apply the guidelines for the approval of persons or bodies as alcohol interlock suppliers made by the Corporation under section 50AAG. (8) If the Corporation refuses to give an approval under sub-section (3) or (5), it must give written notice of the refusal and the reasons for it to the person or body who applied for the approval. (9) Subject to sections 50AAH and 50AAI, an approval under this section remains in force for the period specified by the Corporation when the approval is given. 50AAF. Conditions on approvals (1) An approval under section 50AAE may be given subject to specified conditions. (2) The Corporation must specify in the approval of an alcohol interlock supplier that it is a condition of the approval that the supplier must— (a) comply with the guidelines (if any) under sections 50AAG(1)(b)(ii) and (c); and (b) ensure that each of the following persons or bodies comply with those guidelines— s. 7 -- 17 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 16 (i) the supplier's employees and agents (if any) who install or maintain approved alcohol interlocks; and (ii) the persons or bodies (if any) authorised by the supplier to install or maintain approved alcohol interlocks. (3) The Corporation may at any time— (a) vary or revoke a condition on an approval; or (b) impose a new condition on an approval— by giving written notice to the person or body concerned, allowing the person or body at least 10 working days to make written representations about the proposed action. 50AAG. Guidelines (1) The Corporation may make guidelines for any of the following matters— (a) the approval of types of alcohol interlocks, including the way in which the Corporation has regard to the matters in section 50AAE(3)(b); (b) the approval of persons or bodies as alcohol interlock suppliers, including— (i) the way in which the Corporation has regard to the matters in section 50AAE(5); and (ii) the type of concessions that must be provided for the purposes of section 50AAE(6); (c) the installation or maintenance of approved alcohol interlocks, including s. 7 -- 18 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 17 the terms and conditions on which approved alcohol interlocks are supplied to customers or a particular class of customer. (2) The guidelines— (a) must be in writing and be published in the Government Gazette; and (b) must be laid before each House of Parliament within 6 sitting days of that House after the guidelines are published in the Government Gazette; and (c) may apply, adopt or incorporate any matter contained in another document, whether as— (i) amended by the guidelines; or (ii) contained in that document at a particular time or from time to time. 50AAH. Cancellation of approval of types of alcohol interlocks (1) The Corporation may cancel the approval of a type of alcohol interlock under section 50AAE if the Corporation is satisfied that it is appropriate to do so because— (a) the type of alcohol interlock is defective to the extent that it is no longer suitable to be approved for the purposes of this Act (whether because the information it records about its use is misleading or for any other reason); or -- 19 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 18 (b) since the type of alcohol interlock was approved, the Corporation has approved one or more other types of alcohol interlocks that the Corporation considers are more suitable to be approved for the purposes of this Act. (2) If the Corporation cancels the approval of a type of alcohol interlock under sub-section (1)(a), the Corporation— (a) must ensure that a notice is published in the Government Gazette, and a newspaper circulating generally throughout Victoria, stating that the approval of the type of alcohol interlock is cancelled with effect from a specified day (which must be after both of those notices are published); and (b) must send a notice to each approved alcohol interlock supplier stating that the approval of the type of alcohol interlock is cancelled with effect from that specified day; and (c) may send a notice to a person whose driver licence or permit is subject to an alcohol interlock condition, at the latest address the person has notified to the Corporation, stating that the person breaches the condition if he or she drives a motor vehicle with that type of alcohol interlock after the day specified in the notice (which must be at least one month after the notice is sent). (3) If the Corporation cancels the approval of a type of alcohol interlock under sub-section (1)(a), a person whose driver licence or permit is subject to an alcohol interlock condition breaches the condition if he or she s. 7 -- 20 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 19 drives a motor vehicle with that alcohol interlock after the later of the following— (a) the day specified in the notice published under sub-section (2)(a); (b) if the person is sent a notice under sub-section (2)(c), the day specified in that notice. (4) If the Corporation cancels the approval of a type of alcohol interlock under sub-section (1)(b)— (a) the Corporation must send a notice to each approved alcohol interlock supplier stating that the approval is cancelled with effect from a specified day; and (b) an alcohol interlock of that type that was installed in a motor vehicle before the specified day is taken to continue to be approved, despite the cancellation, for the purposes of this Act and the Sentencing Act 1991. (5) In sub-sections (2)(c) and (3), "alcohol interlock condition" includes an alcohol interlock condition imposed in accordance with a direction under section 89A of the Sentencing Act 1991. Note: Under section 50AAD(3), a person who breaches an alcohol interlock condition because the approval of a type of alcohol interlock has been cancelled has a defence if the person proves that he or she reasonably believed that the type of alcohol interlock was approved. 50AAI. Cancellation of approval of alcohol interlock supplier (1) The Corporation may, by giving written notice to an approved alcohol interlock s. 7 -- 21 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 20 supplier, cancel the supplier's approval under section 50AAE if the Corporation is satisfied that it is appropriate to do so because the supplier— (a) has failed to comply with one or more conditions of the approval; or (b) is no longer supplying, installing or maintaining alcohol interlocks. (2) If the Corporation cancels the approval of an alcohol interlock supplier, the Corporation— (a) must ensure that a notice is published in the Government Gazette, and a newspaper circulating generally throughout Victoria, stating that the approval of the alcohol interlock supplier is cancelled with effect from a specified day (which must be after both of those notices are published); and (b) may send a notice to a person whose driver licence or permit is subject to an alcohol interlock condition, at the latest address that the person has notified to the Corporation, stating that the person breaches the condition if— (i) the supplier, or a person or body authorised by the supplier, installs or maintains an approved alcohol interlock in a motor vehicle; and (ii) the person drives the motor vehicle with that approved alcohol interlock— after the day specified in the notice (which must be at least one month after the notice is sent). s. 7 s. 7 -- 22 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 21 (3) If the Corporation cancels the approval of an alcohol interlock supplier, a person whose driver licence or permit is subject to an alcohol interlock condition breaches the condition if— (a) the supplier, or a person or body authorised by the supplier, installs or maintains an approved alcohol interlock in a motor vehicle after the later of the following— (i) the day specified in the notice published under sub-section (2)(a); or (ii) if the person is sent a notice under sub-section (2)(b), the day specified in the notice; and (b) the person drives the motor vehicle with that approved alcohol interlock after the later of those days. (4) In sub-sections (2)(b) and (3), "alcohol interlock condition" includes an alcohol interlock condition imposed in accordance with a direction under section 89A of the Sentencing Act 1991. Note: Under section 50AAD(3), a person who breaches an alcohol interlock condition because the approval of an alcohol interlock supplier has been cancelled has a defence if the person proves that he or she reasonably believed that the supplier was approved. 50AAJ. Review by Tribunal (1) A person or body whose interests are affected by a decision of the Corporation— (a) under section 50AAE to refuse to give an approval; or s. 7 -- 23 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 22 (b) under section 50AAH or 50AAI to cancel an approval— may apply for review of the decision to the Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998. (2) An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if notice of the decision is published under section 50AAH(2)(a) or 50AAI(2)(a) in both the Government Gazette and a newspaper, the day on which the later notice is published; or (c) if notice of the decision is given or sent to the person or body under section 50AAE(7), 50AAH(2), 50AAH(4), 50AAI(1) or 50AAI(2), the day on which the notice is given or sent to the person or body; or (d) if the person or body requests a statement of reasons for the decision under the Victorian Civil and Administrative Tribunal Act 1998, the day on which— (i) the statement is given to the person or body; or (ii) the person or body is informed under section 46(5) of that Act that the statement will not be given.'. 8. Previous convictions In the table in section 50AA, after the last entry in the table, insert— s. 8 -- 24 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 23 "Section 50AAA(2) and (3) The making of an application under section 50(4) Section 50AAB(3) The making of an application under section 50(4)". 9. Requirement to carry licence and to have zero blood alcohol (1) In section 19(7) of the Road Safety Act 1986— (a) after "50(4)" insert "of this Act or section 89(2) of the Sentencing Act 1991"; (b) after "3 years" insert "(or any longer period during which an alcohol interlock condition as defined in section 3(1) of this Act or section 87P(1) of the Sentencing Act 1991, as the case requires, applies to the licence)". (2) In section 52(1B) of the Road Safety Act 1986— (a) after "3 years" insert "(or any longer period during which an alcohol interlock condition as defined in section 3(1) of this Act or section 87P(1) of the Sentencing Act 1991, as the case requires, applies to the licence)"; (b) after "50(4)" insert "of this Act or section 89(2) of the Sentencing Act 1991". 10. New section 103B inserted After section 103A of the Road Safety Act 1986 insert— "103B. Application of amendment made by the Road Safety (Alcohol Interlocks) Act 2002 (1) Section 50AAA only applies to offences alleged to have been committed on or after the commencement of section 10 of the Road Safety (Alcohol Interlocks) Act 2002. s. 10 -- 25 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 24 (2) For the purposes of sub-section (1), if an offence is alleged to have been committed between two dates, one before and one after the commencement, the offence is alleged to have been committed before that commencement.". __________________ -- 26 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 25 PART 3—SENTENCING ACT 1991 11. New section 87P inserted Before section 88 of the Sentencing Act 1991, in Division 3 of Part 4, insert— '87P. Interpretation (1) In this Division— "alcohol interlock" has the meaning given by section 3(1) of the Road Safety Act 1986; "alcohol interlock condition" means a condition imposed on a driver licence in accordance with a direction under section 89A; "approved alcohol interlock" has the meaning given by section 3(1) of the Road Safety Act 1986; "approved alcohol interlock supplier" has the meaning given by section 3(1) of the Road Safety Act 1986. (2) In determining whether an offence is a first or subsequent offence for the purposes of section 89A or 89B— (a) section 48(2) of the Road Safety Act 1986 applies as though it included a reference to a person who is convicted of an offence referred to in any one of the paragraphs of section 89(1) of this Act; and (b) section 50AA of the Road Safety Act 1986, including the table in that section, applies as though— See: Act No. 49/1991. Reprint No. 6 as at 1 August 2001 and amending Act Nos 45/2001 and 61/2001. LawToday: www.dms. dpc.vic. gov.au s. 11 -- 27 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 26 (i) section 89A(2) and (3), and section 89B(2), of this Act were specified in column 1 of the table; and (ii) the event specified in relation to those sections in column 2 of the table were the making of the application under section 89(2).'. 12. Cancellation or suspension of driver licence In section 89 of the Sentencing Act 1991— (a) at the foot of sub-section (3A) insert— "Note: In some cases, the court is not required to have regard to the report referred to in sub-section (3B)(a): see section 89A(3)(a)."; (b) at the foot of sub-section (3B) insert— "Note: In some cases, the person is not required to obtain the report referred to in paragraph (a): see section 89A(3)(a)."; (c) at the foot of sub-section (3E) insert— "Note: The court may, in making the order sought, be permitted or required to direct the Roads Corporation to impose an alcohol interlock condition on a driver licence granted to the applicant: see section 89A.". 13. New sections 89A to 89D inserted After section 89 of the Sentencing Act 1991 insert— '89A. Direction to impose alcohol interlock condition (1) This section applies if— (a) a person was disqualified under section 89 from obtaining a driver licence because he or she was found guilty of an offence; and s. 12 -- 28 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 27 (b) there was a finding that the person was under the influence of alcohol when the offence was committed which contributed to the commission of the offence; and (c) the person makes an application under section 89(2) for an order; and (d) the Magistrates' Court considers it appropriate to make the order. (2) If the offence was a first offence, on making the order the court may direct the Roads Corporation that it can only grant the person a driver licence that is subject to a condition that the person must only drive a motor vehicle with an approved alcohol interlock installed and maintained by an approved alcohol interlock supplier or a person or body authorised by an approved alcohol interlock supplier. Note: For "approved alcohol interlock" and "approved alcohol interlock supplier", see section 87P(1). (3) If the offence was not a first offence— (a) despite section 89(3A) and (3B), the person is not required to obtain, and the court is not required to have regard to, a report referred to in section 89(3B)(a); and (b) on making the order, the court must direct the Roads Corporation that it can only grant the person a driver licence that is subject to a condition that the person must only drive a motor vehicle with an approved alcohol interlock installed and maintained by an approved alcohol interlock supplier or a s. 13 -- 29 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 28 person or body authorised by an approved alcohol interlock supplier. 89B. Removal of alcohol interlock condition (1) If the court gives a direction under section 89A(2) or (3)(b), it must specify in the direction a period during which the person concerned cannot apply to the court for the removal of an alcohol interlock condition imposed on his or her driver licence. (2) The specified period must be— (a) at least 6 months after the condition is imposed in the case of— (i) a direction under section 89A(2); or (ii) a direction under section 89A(3)(b) where the offence concerned was a second offence; or (b) in any other case, at least 3 years after the condition is imposed. (3) The Roads Corporation must not remove an alcohol interlock condition imposed on a person's driver licence unless the court orders, on the application of the person, that the condition be removed. (4) Within 28 days before applying for the removal of an alcohol interlock condition imposed on a person's driver licence, the person must obtain from an accredited agency a report that— (a) covers all of the period, but at least 6 months, since an approved alcohol interlock was installed by an approved alcohol interlock supplier, or a person or body authorised by such a supplier, s. 13 -- 30 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 29 in a motor vehicle driven by the person during that period; and (b) includes— (i) an assessment by each approved alcohol interlock supplier who maintained or authorised a person or body to maintain the approved alcohol interlock during that period on the extent to which the person complied with the manufacturer's instructions for using the approved alcohol interlock; and (ii) an assessment of the person's use of alcohol during that period; and (iii) the last licence restoration report obtained by the person. (5) In determining whether to make an order to remove an alcohol interlock condition imposed on a person's driver licence— (a) the court must hear any relevant evidence tendered by either the person or the Chief Commissioner of Police and any evidence of a registered medical practitioner required by the court; and (b) the court, without limiting the generality of its discretion, must have regard to— (i) the person's use of alcohol in the period since the condition was imposed; and (ii) the person's physical and mental condition at the time of the hearing of the application; and s. 13 -- 31 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 30 (iii) the effect that the making of the order may have on the safety of the person or the public; and (iv) any report obtained under sub-section (4). 89C. Appeals against direction or period specified in direction (1) If the court gives a direction under section 89A(2) or (3)(b), the person in respect of whom the direction is given may appeal to the County Court under section 83 of the Magistrates' Court Act 1989 against— (a) in the case of a direction under section 89A(2)— (i) the giving of the direction; or (ii) the period specified in the direction during which the person cannot apply for the removal of an alcohol interlock condition if that period is more than 6 months; or (b) in the case of a direction under section 89A(3)(b)—the period specified in the direction during which the person cannot apply for the removal of an alcohol interlock condition if that period is more than the minimum period set out in section 89B(2)(a) or (b) (whichever applies)— as if the direction were a sentencing order of a kind referred to in section 83 of the Magistrates' Court Act 1989. (2) That Act applies with respect to the appeal with any necessary modifications. 89D. Offences and immobilisation orders s. 13 -- 32 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 31 (1) A person whose driver licence is subject to an alcohol interlock condition is guilty of an offence if— (a) the person breaches that condition; or (b) the person drives a motor vehicle with an approved alcohol interlock in accordance with that condition but the motor vehicle has been started— (i) with the approved alcohol interlock disengaged; or (ii) in a way that does not comply with the manufacturer's instructions for the use of the approved alcohol interlock; or (iii) in a way other than by the person blowing directly into the appropriate part of the approved alcohol interlock. Note: Sections 50AAH and 50AAI of the Road Safety Act 1986 may affect whether a person has breached the condition. (2) A person who is guilty of an offence against sub-section (1) is liable to a fine of not more than 30 penalty units or to imprisonment for a term of not more than 4 months. (3) If— (a) a person breaches an alcohol interlock condition by driving a motor vehicle with a type of alcohol interlock— (i) the approval of which is cancelled under section 50AAH of the Road Safety Act 1986; or s. 13 -- 33 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 32 (ii) that is installed or maintained by a person or body whose approval as an alcohol interlock supplier is cancelled under section 50AAI of the Road Safety Act 1986; or (iii) that is installed or maintained by a person or body who would be authorised by an approved alcohol interlock supplier except that the supplier's approval is cancelled under section 50AAI of the Road Safety Act 1986; and (b) the person is charged with an offence against sub-section (1)(a) in respect of that breach— it is a defence if the person proves that he or she reasonably believed at the time of the breach that the type of alcohol interlock was an approved alcohol interlock, or the person or body was an approved alcohol interlock supplier or authorised by such a supplier, as the case may be. (4) A court finding a person guilty, or convicting a person, of an offence against sub-section (1)(b) may, if the court considers it appropriate to do so, order that the motor vehicle concerned be immobilised (whether by wheel clamps or any other means) for a period specified in the order of up to 12 months. (5) An order under sub-section (4) may be made subject to specified conditions. (6) The court may make an order under sub-section (4) whether the motor vehicle is owned by the offender or another person. s. 13 -- 34 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 33 (7) If the court considers that another person, who is not present at the hearing concerning the making of an order under sub-section (4), may be substantially affected by such an order, the court must issue a summons to that other person to show cause why the order should not be made. (8) On the return of the summons, the court may, after hearing the evidence brought before it, make or refuse to make the order.'. 14. New section 126B inserted At the end of Part 12 of the Sentencing Act 1991 insert— "126B. Application of amendment made by the Road Safety (Alcohol Interlocks) Act 2002 (1) Section 89A only applies to offences alleged to have been committed on or after the commencement of section 14 of the Road Safety (Alcohol Interlocks) Act 2002. (2) For the purposes of sub-section (1), if an offence is alleged to have been committed between two dates, one before and one after the commencement, the offence is alleged to have been committed before that commencement.". ═══════════════ s. 14 -- 35 of 36 -- Act No. 1/2002 Road Safety (Alcohol Interlocks) Act 2002 34 ENDNOTES † Minister's second reading speech— Legislative Assembly: 29 November 2001 Legislative Council: 19 March 2002 The long title for the Bill for this Act was "to amend the Road Safety Act 1986 and the Sentencing Act 1991 with respect to the use of alcohol interlocks as a condition of granting a driver licence or permit to certain disqualified drivers and for other purposes." Endnotes -- 36 of 36 --