| Summary: | 碩士 === 國立臺灣海洋大學 === 海洋法律研究所 === 102 === In recent years, the government has vigorously promoted a policy for strictly banning drunk driving. On June 11, 2013, the breathalyzer test value was brought down from the previous 0.25mg/L under the administrative regulation (Road Traffic Penalty Act) to current 0.15mg/L (which converts to a reduction of blood alcohol concentration from 50g/dL to 30g/dL), and on the same day the standard level suspicious of violation of criminal law was brought down from a value of 0.55mg/L to 0.25mg/L﹝which converts to a reduction of blood alcohol concentration from 110g/dL to 50g/dL). However, regardless of whether drunk driving ban provisions are within the scope of administrative penalties or criminal penalties, the public's recidivism rate remains quite high. Hence the government made amendment to the provision of Clause 4, Article 35 of the Road Traffic Penalty Act that “Drivers, who while passing police authorities with a notice to perform the first part of the test, fail to stop for inspection as instructed, or refuse to take the first part of the test, shall be subject to a fine of NT$90,000 on the spot seizure and relocation of the car, revocation of the driver's license, and be required to attend a road safety workshop, and should it causes an accident of serious injury or death, the driver’s driving license shall be revoked, as well as eligibility for test retaking and license reissuance.” Clause 5 of the same Article provides: “Those drivers who cause an accident and refuse or are unable to take the first part of the test shall be forcefully transported by traffic police or legally authorized road check personnel to entrusted medical or inspection agency to carry out blood or other specimen sampling for testing verification.” The administrative decree endows the police personnel responsible for making alcohol tests with the right to forcefully transfer those drivers who refuse to perform breath tests to locations for sample testing.
Some people have taken an attitude of trusting their luck, believing that when flagged down by the police, if they refuse the breathalyzer test, the maximum penalty would only be a NT$90,000 fine on the spot seizure and relocation of the car, and revocation of the driver's license. To avoid being charged with committing crime of public danger after the test, they adopt an attitude of passive un-cooperation to evade police investigation. There has been an endless stream of responses to such cases from the government. On June 18, 2013, the Ministry of the Interior's National Police Agency newly promulgated standard operating procedure for refusal to take test for drunk driving, providing that when drivers refuse alcohol testing, police on duty can use their professional judgment. If it is believed that the driver’s alcohol concentration may reach 0.25 mg/L or if there shows any sign of instability, meandering, incoherent speech, slurred speech, or other abnormal behavior, the traffic police may, in accordance to Article 88 and Provision 2 of Article 205 of the Code of Criminal Procedure, arrest the driver and enforce alcohol testing. Should the driver still refuse to exhale, the police may, in accordance with Provision 1 of Article 205 of the Code of Criminal Procedure, request that the prosecutor issue a verification permit so that the driver may be sent to medical inspection agencies for verification by blood sampling, and on the basis of violation of Clause 3, Item 1, of Article 185 of the Penal Code, the crime of being unable to drive safely, transfer the case to the prosecutor for investigation. This move seems to have expanded the scope of enforcement for police flagging down and investigation of such cases.
Since driving under the influence has been upgraded from a mere violation of administrative regulations to criminal behavior, by the same argument, drunk drivers are also no longer simple “traffic violators,” but are now “suspects.” The methods and processing of such behavior should also be converted from administrative procedures of law enforcement officials to judicial conduct stressing protection of human rights. However, in the current mode of police execution of prohibition duties, there has yet to be any related change on account of criminalization of drunk driving. If here, in the first gathering of evidence for criminal procedures, law enforcement is challenged, namely the basis for law enforcement, where is the legal source for banning?
The police personnel’s prohibition and the inspection process for drunk driving from arresting, questioning, alcohol breathalyzer tests and even mandatory blood tests all involve restrictions and interference of citizens’ fundamental constitutional rights. What is the scope of these fundamental rights? Is it the core of fundamental constitutional rights of the individual that cannot be violated? If it is a core value of personal inviolability, then when the police carry out enforcement, is this in keeping with the due process of law which should be provided in a country with rule of law? The constitutionality of such acts is an important key.
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