Obligation to have a blood test at a roadside check

30.3.2023

Nowadays, at virtually every roadside check, drivers are asked to undergo a test to check for possible alcohol or other addictive substances. Does the driver have the option of disobeying the officer's invitation? What are the consequences of disobeying? And is the driver similarly obliged to undergo a follow-up medical examination involving a blood test?

The introductory provisions of Act No. 361/2000 Coll., the Act on Road Traffic and on Amendments to Certain Acts (hereinafter referred to as the "Road Traffic Act"), impose a large number of obligations on road users. Of relevance to this Article is the obligation under Section 5(1)(f) of the Road Traffic Act to submit, at the request of the competent authority, to an examination pursuant to a special legal provision to determine whether he is under the influence of alcohol. At this point, it is necessary to refute the often repeated misconception that the authority expressly mentioned by the law as being entitled to make the call is also a municipal police officer, not only a member of the national police.

The specific piece of legislation referred to is Act No. 65/2017 Coll., the Act on the Protection of Health against the Harmful Effects of Addictive Substances, which in section 20 lays down the rules for conducting an orientation or professional examination. In practice, the orientation examination is carried out by measuring with a breathalyser and the professional examination is carried out in a medical facility by taking blood or also urine or saliva. The statutory provision further states that a specialist medical examination shall be carried out if the obliged person refuses the orientation examination or the examination cannot be carried out or completed successfully. If the expert examination is also refused, the person shall be regarded as if he/she is under the influence of alcohol.

We will now translate the above legal premises into practice in two real situations.

Situation 1

At a roadside check, you are asked to submit to an examination to check whether you are under the influence of alcohol. You refuse the breathalyser test (usually Dräger) for whatever reason and are therefore, in accordance with the above-mentioned statutory provision, invited by a police officer to undergo a specialist examination at a nearby hospital and are duly informed of the consequences of not complying with the invitation, whereupon you also refuse this invitation.

By doing so, you are committing an offence under Section 125c(1)(d) of the Road Traffic Act. For this offence, a fine of CZK 25,000 - 50,000 is imposed, in particular a mandatory driving ban of 1 to 2 years and 7 points. It must be borne in mind that a finding of guilt of the offence does not preclude prosecution for the offence of driving under the influence of an addictive substance pursuant to Section 274 of the Criminal Code ^[1].

Situation 2

At a roadside check, you are asked to submit to an examination to check whether you are under the influence of alcohol. You take the breathalyser test properly and as instructed by the police officer with a positive result significantly exceeding 1 per mille of alcohol. You do not dispute the result, you consider the check complete and you are about to be driven to your destination by your co-driver. However, you are invited by the police officer to undergo a professional examination at a nearby hospital and are duly informed of the consequences of not complying with the invitation. As you have undergone an orientation breath test and are, for example, in a hurry, you refuse the invitation.

Consequently, the matter of your driving under the influence of alcohol is assessed as an act fulfilling the criminal offence of driving under the influence of an addictive substance pursuant to Section 274 of the Criminal Code, with a possible penalty of up to one year's imprisonment, a fine and a ban on activity in the range of 1-10 years. Although the penalty of a driving ban will cause you considerable problems in your professional and personal life, you consider it, together with the other penalties imposed, to be proportionate to your misconduct.

You are then served with an order from the administrative authority which finds you guilty of an offence under Section 125c(1)(d) of the Road Traffic Act, i.e. refusal to submit to a professional alcohol test when requested to do so, and imposes on you, in addition to a substantial fine, a statutory ban of 12 to 24 months.

The bottom line is that both the prohibition of activity for the offence of refusing to undergo a professional alcohol test and the prohibition of activity for the offence of driving under the influence of an addictive substance, where the basic evidence is the properly conducted breath test, are imposed on you, and these prohibitions of activity will be imposed on you consecutively, which will result in a significant extension of the prohibition of activity as such.

It should be noted that both of the situations described are based on real-life examples, and although I consider the procedure in Situation 2 to be contrary to the law, I have encountered it repeatedly with my clients.

As already indicated above, the prerequisites for making a request for a professional medical examination are, according to the law, alternatively:

Refusal of an orientation examination,
impossibility of carrying out,
impossibility of successful completion.

In addition to an apparent express refusal, the foregoing may include, for example, conditioning the performance of the examination (e.g., taking care of a work matter or driving a passenger), obstruction of the examination (e.g., inhaling instead of exhaling), or inability to perform the examination due to excessive intoxication.

In particular, the indicative breath test must be performed with a certified and properly calibrated breath analyser. According to the Methodology for the measurement of alcohol in breath issued by the Czech Metrology Institute as well as according to the binding instructions of the Police of the Czech Republic, the measurement must be repeated at least once after a period of 5 minutes, and the difference in the measurement must not be greater than 10 % for the measurement to be acceptable.

If, with the cooperation of the driver and in compliance with all the above conditions, the result of the measurement cannot be considered borderline in terms of liability for an offence or a criminal offence, it must be considered sufficient and no call for a specialist medical examination can be made, or failure to comply with such a call cannot give rise to liability for an offence under Section 125c(1)(d) of Act No 361/2000 Coll., the Road Traffic Act. In addition to the above, the law explicitly states that a professional medical examination shall not be carried out when a breathalyser test is carried out which meets the conditions.

The purpose of the call for an alcohol test and the subsequent test itself is undoubtedly to provide evidence for further offence or criminal proceedings in the event of a positive result. Refusal to be tested is sanctioned by the presumption of alcohol impairment, the commission of an offence and the imposition of a fine together with a ban on activity.

A properly conducted orientation breath test is considered in criminal proceedings to be capable of demonstrating the exclusion of fitness to drive and, unless it is a borderline or evidentially inconsistent situation, a medical examination is not required.

In the case of a properly conducted orientation breath test in accordance with the methodology and instructions of the Police of the Czech Republic with a positive result that does not border on an offence and a criminal offence, the invitation of a police officer to undergo a professional test (blood sampling) cannot be considered lawful with all the ensuing consequences for the offence proceedings.