Testing Vehicle Drivers for Alcohol, Drug or Other Intoxication
The article by Iurii Asadchev, LEXLIGA’s Associate
As follows from cl. 11 paragraph 1 Art. 23 of the Law of Ukraine “On the National Police” No. 580-VIII of 2 July 2015, the police in the performance of their tasks must direct the traffic and exercise control over road users’ compliance with traffic regulations and rules of appropriate operation of vehicles in the street and road network. Clause 2.9 of the Road Traffic Rules prohibits drivers to: drive a vehicle while influenced by alcohol, drugs or toxic substances, and pass over driving to persons under the said influence, while being ill, tired, or affected by medicines reducing alertness and attention.
In light of the above law being enacted, the Ministry of Internal Affairs of Ukraine signed a new order No. 1452/735 of 9 November 2015 “On Approval of the Instruction on the Procedure for Detecting the Alcohol, Narcotic and Other Intoxication, or the Influence of Medicines Reducing Attention and Alertness in Vehicle Drivers”. Alongside the above mentioned Law and Instruction No. 1452/735, the issue on testing drivers to determine alleged intoxication is also regulated by: the Code of Ukraine on Administrative Offences (CUAO); the Laws of Ukraine “On Road Traffic” and “On Measures against Illicit Trafficking in Narcotic Drugs, Psychotropic Substances and Precursors, and Their Abuse”; resolution of the Cabinet of Ministers of Ukraine No. 1103 of 17 December 2008 “On Approval of the Procedure for Referring Vehicle Drivers to Testing for the Alcohol, Narcotic or Other Intoxication, or the Influence of Medicines Reducing Attention and Alertness, and Conducting Such Testing” (as amended on 28 October 2015). Intoxication testing must be applied to all vehicle drivers considered by the relevant police unit of the National Police of Ukraine to be driving under the influence as per the respective intoxication signs.
Signs of alcohol intoxication are: alcohol vapours from the mouth; movement disorder; speech disorder; apparent finger tremor; sharp changes in facial skin colour; inadequate conduct.
Signs of narcotic or other intoxication, as well as effects of medicines reducing attention and alertness, are: one or several signs of alcohol intoxication (except for alcohol vapours); constricted or too dilated unresponsive pupils; delayed or, vice versa, too lively or fast-paced gait and speech; red or unnaturally pale face.
With all this in mind, we should note that intoxication testing must be carried out by:
- a police officer at the place where the vehicle has been stopped, using special technical devices approved by the Ministry of Health of Ukraine and the State Committee for Technical Regulation and Consumer Policy;
- a doctor at the healthcare institution (in rural areas where a proper doctor may be absent, by a medical attendant of the local primary health centre) who has received specialized training (thematic advanced training under the relevant programme as required by current laws).
In the event the driver refuses to undergo field sobriety testing, or disagrees with results of the testing already conducted by the police officer, such testing must take place at the nearest healthcare institution that has been respectively authorized pursuant to Art. 266 of the Code of Ukraine on Administrative Offences. At the same time, where the driver has caused a traffic accident resulting in casualties or injuries, testing of people involved in the accident must be unfailingly carried out by a healthcare institution. Vehicle drivers must be tested for alcohol intoxication by police officers having special ranks. Police officers must use special technical devices confirmed, in particular, by certificates of conformity and certificates of their calibration as working measuring instruments. Intoxication testing must be performed in compliance with the standard operation procedures of special technical devices and appropriately recorded in hard copies and on electronic media where such function is supported by respective devices. Before the police officer starts testing for intoxication, he or she must inform the person being tested on the procedure of applying the special technical device and, at the testee’s request, provide the respective conformity certificate and calibration certificate proving the device’s proper functioning. Field testing takes place at the site where the vehicle has been stopped by the police and in the presence of two witnesses. If this occurs, witnesses are not allowed to be police officers or other persons with doubtful impartiality.
Alcohol intoxication is positively determined further to the testing conducted by the police officer, with the observance of the Instruction, using special technical devices that upon testing have quantitative readings of more than 0.2 permille of alcohol contained in blood (nearly 500 g of beer or 20 g of vodka). Just to compare, in the UK blood alcohol content must not exceed 0.8 permille; in Spain, Italy, France – 0.5 permille; in Russia– 0.35 permille; in Sweden – 0.2 permille.
Results of the driver’s alcohol testing carried out by the police officer are indicated in the certificate of alcohol intoxication testing with the use of special technical devices. Where intoxication is positively determined, results of the testing performed by the police officer must be included in the administrative offence report, with the testing certificate attached.
A testing certificate is executed in two copies ,one of them to be handed over to the vehicle driver, whereas the other to be kept by the police officer and / or filed with the administrative offence report in case intoxication is confirmed. Quite different details are specific to the process of intoxication testing by healthcare institutions. For example, samples of biological environments for the laboratory analysis must be taken in two containers. A sample in one container is used for the primary analysis, and a sample in the other container is supposed to be stored for 90 days. Storing and transporting containers with biological environment samples to another healthcare institution, securing proper sealing of containers, is the responsibility of the healthcare centre that has done the sampling. Material for the biological environment analysis may include saliva, urine, and wipe samples from the surface of lips, facial and hand skin.
Blood may also be used for such analysis purposes if it turns out to be impossible to take samples of the above environments from the person being tested. Importantly, in case when the driver is unconscious or heavily injured as a result of a traffic accident, it is compulsory to conduct the analysis of his or her biological environments or blood for the content of alcohol, drugs or psychotropic substances, at the healthcare institution where such driver has been taken to after the accident. A medical report that needs to be made following the findings of testing for alcohol, narcotic and other intoxication or for influence of medicines reducing attention and alertness, is issued on the basis of the respective medical testing certificate. The tested person must be informed of the content of such medical report in the presence of the police officer who has brought such person to the hospital, which must be appropriately recorded in the said report. All entries made to the medical testing certificate and the report on the testing results are required to be clearly stated, and must not include obscure wordings such as “Normal”.
A medical testing certificate is executed in one copy to be kept by the healthcare institution. A report on the intoxication testing results is executed at all times right after the testing in three copies: one copy must be issued with the signed receipt to the police officer who has brought the person for testing, one copy goes to the testee, whereas one more remains in the healthcare centre. Each and every referral for intoxication testing at the healthcare institution is subject to a compulsory entry to the medical testing log book specially maintained in hospitals for such testing procedures to determine alcohol, drug and other intoxication, or influence of medicines affecting alertness and reaction. One final comment is that, as seen from the disposition of paragraph 1 Art. 130 of the CUAO, liability is not only imposed for driving vehicles while intoxicated with alcohol, narcotic or other substances, or while affected by medicines decreasing attention and alertness, and passing over driving to persons intoxicated or affected, but also for the vehicle driver’s refusal to undergo the appropriate testing for alcohol, drug or other substances or medicines affecting attention and reaction.