Section 40Part 4 — Powers, Duties and Privileges of Police Officers
Testing for presence of controlled drugs
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40. (1) A sample of urine or a non-intimate sample may be taken from a person in police detention for the purpose of ascertaining whether the person has any controlled drug in that person’s body if —
that person has been arrested for an offence but has not been charged or been charged with an offence and a police officer of at least the rank of Inspector has reasonable grounds for suspecting that the misuse by that person of a controlled drug caused or contributed to the offence and has authorised the sample to be taken;
that person has been charged with a firearm offence and a police officer of at least the rank of Inspector has reasonable grounds for suspecting that the misuse by that person of a controlled drug caused or contributed to the offence and has authorised the sample to be taken;
that person has attained the age of seventeen years; and
a police officer has requested that the person concerned give the sample.
Before requesting the person concerned to give a sample, a police officer shall —
warn the person that if, when so requested, the person fails without good cause to do so that person may be liable to prosecution; and
in a case within subsection (1)(a) or (b), inform that person of the giving of the authorisation and of the grounds in question. Police Act (2021 Revision) Section 40 c Revised as at 31st December, 2020 Page 35
In the case of a person who has not attained the age of seventeen —
the making of the request;
the giving of the warning and (where applicable) the information under subsection (2); and
the taking of the sample, may not take place except in the presence of an appropriate adult.
If a sample is taken under this section from a person in respect of whom an arrest has been made but that person has not been charged no other sample may be taken from that person under this section during the same continuous period of detention but if the person is subsequently charged at any time during that period —
the sample shall be treated as a sample taken by virtue of the fact that that person has been charged; and
the fact that the sample is to be so treated shall be recorded in the person’s custody record.
Notwithstanding subsection (1), a sample may be taken from a person under this section if —
the person was arrested for an offence (in this subsection referred to as the “first offence”);
the person was arrested but not charged;
before a sample is taken by virtue of subsection (1) the person would, but for that person’s arrest as mentioned in paragraph (d), be required to be released from police detention;
that person continues to be in police detention by virtue of that person having been arrested for an offence not being a firearm offence; and
the sample is taken before the end of the period of twenty-four hours starting with the time when that person’s detention by virtue of that person’s arrest for the first offence began.
A sample shall not be taken from a person under this section if the person is detained in a police station unless that person has been brought before a custody officer appointed pursuant to section 69.
Information obtained from a sample taken under this section may be disclosed —
for the purpose of informing any decision about granting bail in criminal proceedings, within the meaning of the Bail Act (2015 Revision), to the person concerned; Section 40 Police Act (2021 Revision) Page 36 Revised as at 31st December, 2020 c
for the purpose of informing any decision about the giving of a conditional caution under the Youth Justice Act (2021 Revision) to the person concerned;
where the person concerned is in police detention or is remanded in or committed to custody by an order of a court or has been granted such bail, for the purpose of informing any decision about that person’s supervision;
where the person concerned is convicted of an offence, for the purpose of informing any decision about the appropriate sentence to be passed by a court and any decision about that person’s supervision or release;
for the purpose of an assessment which the person concerned is required to attend by virtue of the Alternative Sentencing Act (2008 Revision) or the Drug Rehabilitation Court Act (2015 Revision);
for the purpose of proceedings against the person concerned for an offence under the Misuse of Drugs Act (2017 Revision); or
for the purpose of ensuring that appropriate advice and treatment is made available to the person concerned.
A person who fails without good cause to give any sample which may be taken from that person under this section commits an offence and is liable on summary conviction to a fine of three thousand dollars or to imprisonment for one year, or to both.
A police officer may give an authorisation under this section orally or in writing but, if the police officer gives it orally, that police officer shall confirm it in writing as soon as is practicable.
If a sample is taken under this section by virtue of an authorisation, the authorisation and the grounds for the suspicion shall be recorded as soon as is practicable after the sample is taken.
If the sample is taken from a person detained at a police station, any matters required to be recorded under this Part shall be recorded in that person’s custody record.
Section 36(15) and (16) apply for the purposes of this section as they do for the purposes of that section; and this section does not prejudice the generality of sections 36 and 37.
In this section — “appropriate adult”, in relation to a person who has not attained the age of seventeen, means —
that person’s parent or guardian or, if that person is in the care of the Department of Children and Family Services, a person representing that Department;
a social worker; or Police Act (2021 Revision) Section 41 c Revised as at 31st December, 2020 Page 37
if no person falling within paragraph (a) or (b) is available, any responsible person aged eighteen or over who is not a police officer or a person employed by the Service; “controlled drug” has the same meanings as in the Misuse of Drugs Act (2017 Revision); and “relevant senior officer” means in relation to a police station, the most senior police officer for that police station.