Im­ran Ali

De­lay­ing a breath test, even for le­gal ad­vice, can amount to a re­fusal to take the test, and can ex­pose you to be­ing charged with an of­fence. This is the pos­si­ble con­se­quence of the re­cent amend­ment to the Mo­tor Ve­hi­cles and Road Traf­fic Act which per­mits the po­lice to ad­min­is­ter a breathal­yser test to dri­vers sus­pect­ed of be­ing un­der the in­flu­ence of al­co­hol.

The law ap­plies to peo­ple who have dri­ven or at­tempt­ed to dri­ve as well as to those who are in charge of mo­tor ve­hi­cles. Thus, a per­son can be charged if he or she has car keys and the car is near­by. Sim­i­lar laws have been in force in the Unit­ed King­dom since 1972.

The courts in that coun­try have had to con­sid­er if an of­fence was com­mit­ted where a per­son did not ex­plic­it­ly refuse to take the test but de­layed un­til af­ter it could have been ad­min­is­tered and, al­so, whether a per­son could refuse to take the test un­less they had re­ceived le­gal ad­vice. The Eng­lish courts an­swered both these ques­tions by stat­ing that the in­ten­tion of the law was that the test should be tak­en as soon as pos­si­ble, and per­sons should not be al­lowed to use de­lay­ing tac­tics to post­pone the test.

It re­mains to be seen whether these ques­tions would be de­cid­ed in the same way in this coun­try. The lo­cal laws per­mit a po­lice of­fi­cer to ad­min­is­ter the test where there is rea­son­able cause to be­lieve that the sus­pect has al­co­hol in his breath or in his blood above the le­gal lim­it or has com­mit­ted an­oth­er traf­fic of­fence.

Re­fus­ing to take the test with­out rea­son­able cause is pun­ish­able by a fine of $8,000 or three years' im­pris­on­ment. The po­lice may not re­quire a sus­pect to un­der­go the test at the sus­pect's home un­less they be­lieve that the sus­pect was in­volved in an ac­ci­dent with­in the pre­vi­ous two hours. Some­one must al­so have been killed or in­jured in that ac­ci­dent. It is an of­fence for a sus­pect to de­lib­er­ate­ly do any­thing to al­ter the con­cen­tra­tion of al­co­hol in his breath or blood.

The Act al­so al­lows the po­lice to re­quire a sus­pect to pro­vide a blood sam­ple. How­ev­er, this is not re­quired once the sus­pect has un­der­gone a breath analy­sis and the re­sults of that analy­sis are avail­able. A breath analy­sis dif­fers from a breath test in that the analy­sis is a de­tailed analy­sis of the sus­pect's breath, and pro­vides an ex­act mea­sure­ment of the quan­ti­ty of al­co­hol in the sam­ple of breath pro­vid­ed. The breath test on­ly pro­vides a like­ly in­di­ca­tion of the al­co­hol lev­el.

The le­gal lim­it is 35 mi­cro­grammes of al­co­hol per 100 mil­ligrammes of breath or 80 mil­ligrammes of al­co­hol per 100 mil­ligrammes of blood. It is dif­fi­cult to say how many drinks a per­son must have to ex­ceed that lim­it as this de­pends on me­tab­o­lism, di­et, the type of al­co­hol con­sumed, and oth­er fac­tors.

• This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er.