24 March 2015

Caught Intoxicated? Dodge the Breathalyzer.

Authored by  Bhavna Raghunath & Ishita Gugnani

It’s a good night out with friends, and you are a few drinks down. But you're not drunk, surely you can drive yourself back home. You are minutes away from home, and you are waved down by a policeman. Within a second realization strikes and you know you are going to be subjected to the Breathalyzer. Your mind is immediately flooded with a million questions. This post is aimed at arming you with relevant information regarding your rights in such a situation.

The first question that would crop up in your mind would be whether the Breath analyzer would detect those two drinks you had. In India the permissible limit is 30 mg of alcohol per 100 ml. of blood (this would mean, either a small glass of wine/one bottle of beer/30 ml whisky but this varies from person to person depending on variables such as their weight and the alcohol content in the drink). Now, if the panic levels have begun to skyrocket you are probably considering the option of refusing to take the test. Before jumping to such rash decisions, it’s better to know what the police will actually do.

An important thing to keep in mind is that a breathalyzer test can only be administered upon you by a police officer who is in uniform or any officer of the Motor Vehicles Department. Additionally, such officers must have ‘reasonable cause to suspect’ you of driving under the influence of alcohol and you’re at a public place. Only then can they can validly ask you to take such a test. The exact wording of Section 203 of the Motor Vehicles Act can be found here.

The first thing that you would probably be asked is whether you have had anything to drink. You can refuse to answer that question courtesy of the Indian constitution, which protects you from self-incrimination. However, if the police officer believes that you are inebriated you may be asked to take a Breathalyzer test. The bad news is that you may be arrested on refusal to take the test as in cases of heavy intoxication some may even fail to be able to provide a proper breath sample. The arrest does not require a warrant unless the person is hospitalized. If you are arrested under such conditions it is mandatory to be subjected to a medical examination conducted by a medical practitioner within two hours of the arrest. In case this is not adhered to you must be released from custody. Officers also have strict instructions to use disposable straws to conduct the test. You can insist on a fresh straw to be taken out in front of you and destroy the straw after you have used it. 

The next concern would be with regard to the penalty that you could be faced with. Under Section 185 of the Motor Vehicles Act, 1988 the charge would be one of impaired driving. The punishment would comprise of imprisonment for a period up to six months and of a fine up to Rs 2000. Further, you would be disqualified from driving for a period extending up to 6 months and the car you were driving will be left in police custody and will only be released after you have settled your case in the court. In cases where a person has been convicted earlier for impaired driving, their license will be cancelled for a time period that the court considers fit, along with regular proceedings of imprisonment up to two years as well as a fine of Rs 3000. In addition, you should be informed that only a reading of a breathalyzer test is not sufficient evidence to cancel a driver’s license without a documented blood test at a certified hospital. Section 204 of the Motor Vehicles Act, 1988 allows you to challenge the recommendation for cancellation of license if it has been done only  on the basis of a breathalyzer test.

Yes, we know what you’re thinking. 

Do such breathalyzers also check for drug usage? 

The answer is no because at the moment;police breathalyzers operate by gauging the relative amount of ethanol (alcohol) in your breath and extrapolating the blood alcohol content from the measurement. But that said, officers are trained to visually detect signs of drug use (red eyes, dialated pupils, excitablility, etc.) along with the usual 'reasonable cause to suspect' drug and alcohol usage.

Since we are students of a private institution, the concerned authorities too have certain leverage over us and can ask us to undergo a breathalyzer test while entering the campus. According to the “First Statutes of the University”, a breach of the set guidelines will result in disciplinary action. If you refuse to undergo a breath analyzer test for the first time, the Disciplinary Committee can offer counseling and also give a written warning alongwith intimating to your parents about your behavior. If you have refused for the second time, you will get a suspension for one whole semester and a third time refusal will result in expulsion.

All said and done, it is best we act as responsible individuals and realize that alcohol and driving do not mix. If you have had a few drinks, it is best to call a cab or ask someone who is sober to drive you home. This will not only save your life but also the lives of innocent strangers who happen to be on the road at that point of time.


2.     Student Handbook, O.P. Jindal Global University

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