The latest amendments to drunk driving legislation were designed to give the police more powers to crack down on the crime and yet the number of drivers managing to evade prosecution has since soared.
One effect of the latest amendment to the Criminal Code has been the emergence of the situation in which drivers refuse to be Breathalyzed in order to evade prosecution. This is because Article 35, Clause 5, of the Statute Governing Road Traffic Management (道路交通管理處罰條例) states that if a driver suspected of being under the influence of alcohol refuses to be Breathalyzed at the scene, the only recourse is to send them to a medical facility and require that they have a blood test or provide a sample of bodily fluid, for the purposes of testing their blood alcohol level.
In simple drunk driving cases, if a driver refuses a Breathalyzer test, the police can fine them up to NT$90,000, but they are not allowed to take a blood sample against the driver’s will. If the driver does not care about the fine, they can therefore pay up after refusing an on-the-spot test, thereby avoiding criminal prosecution. This is clearly unfair.
However, with the amendment to Article 185-3 of the Criminal Code, if a driver is found through other means to be incapable of safely driving due to being under the influence of alcohol, or other similar substances, they can still be charged with drunk driving.
The code clarifies that “through other means” refers to methods other than a blood alcohol test, with law enforcement officers making an objective assessment at the scene. Therefore, should a driver refuse to be Breathalyzed, the police should not actually fine them immediately, but instead have the driver perform balance and coordination tests, such as attempting to walk in a straight line or drawing a circle.
The problem with this approach is that the successful performance of such tasks does not necessarily mean the person is under the legal blood alcohol limit and the police can still, according to Article 205-1 of the Code of Criminal Procedure (刑事訴訟法), have an expert witness forcibly take a blood sample from a driver who has refused to be Breathalyzed. However, such invasive measures require permission from a judge or public prosecutor.
Not only are the conditions for this procedure stringent and complex, there are also serious reservations about how much this constitutes a violation of human rights: To resort to such measures only to test a driver’s blood alcohol level seems to many people excessive and disproportionate.
According to the latter part of Article 205-2 of the same law, the police are also permitted to collect samples of urine, breath and other items from a suspected drunk driver who has refused to be Breathalyzed, against their will and following their arrest, to be used as evidence in an ensuing investigation. This can be done even without the prior consent of a judge or public prosecutor, as long as there is substantial cause to believe that the driver has violated the Criminal Code.
The problem is, how is it possible to determine that the law has been broken if a driver refuses to be Breathalyzed? Not only are clauses such as these difficult to interpret or implement, they also require the police to go beyond what they are legally allowed to do.
With these latest amendments to the law on drunk driving, the possibility of evading prosecution is in stark contrast with government rhetoric saying it is getting tough on drunk drivers and highlights a lack of thought in writing the amendments. This must be improved with the next set of amendments.
Wu Ching-chin is an associate professor of law at Aletheia University.
Translated by Paul Cooper
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