DRIVING UNDER INFLUENCE OF ALCOHOL AND THE MANDATORY JAILTERM

Drink driving remains a cause of serious concern in the nationwide of Malaysia. Many people lose their lives as a result of drunk drivers every year. As a result of the spate of fatal road accidents involving drunk driving have eventually caught the attention of the public, triggering a series of reactions which caused the Malaysian Government to review the existing law related to the offence herein.

In this regard, the Malaysian Government has engaged in various discussions with different agencies and conducted several surveys that all indicated tremendous support for stricter laws around drink driving. These results led to a review of the law and the Malaysian Government has introduced the Road Transport (Amendments) Act 2020 (‘the Amended Act 2020’) to improve the level of road safety for the public. The Amended Act 2020 was passed by the Parliament on 26 August 2020 and eventually came into effect on 23 October 2020.

With the Amended Act 2020, the penalties for driving under influence of alcohol, drugs and/or reckless driving has been increased. Anyone who is found to have been driving under influence of alcohol, or so-called drink-driving, will face heavier punishment, mandatory jail term, minimum ten thousand of fine, at least 2 years suspension of driving license.

With the Amended Act 2020, people face even stricter penalties than before, and convictions will have significant consequences on their lives. At a glance, with the heavier fines, longer jail times and licence disqualification, it’s now more vital than ever to think before you decide to drive.

Today, in the context of this article we intend to set out some important things you should know about the prescribed alcohol limits and the new penalties introduced by the Amended Act 2020.

Q1: Is it a Criminal Offence to drink and drive in Malaysia?

The answer to this question is positive. It is a criminal offence to drive a vehicle when the alcohol content in a person’s breath, blood or urine exceeds the prescribed limit under the Amended Act 2020.

Pursuant to the Amended Act 2020, there are a few sections under which you may be charged for having driven under the influence of alcohol, the easiest to get is under S.45A of the Amended Act 2020.

S.45A provided that “it is an offence for any person to drive, or attempting to drive a motor vehicle or when in charge of a motor vehicle on a road or other public place, while having so much alcohol content in his body that the proportion thereof in his breath, blood or urine exceeds the prescribed limit, shall be guilty of an offence.”

Q2: What is the new prescribed limit of alcohol introduced by the Amended Act 2020?

• Pursuant to 45G of the Amended Act 2020, the new prescribed limits of alcohol are defined as follows:-

1. 22 microgrammes of alcohol in 100 millilitres of breath
2. 50 milligrammes of alcohol in 100 millilitres of blood
3. 67 milligrammes of alcohol in 100 millilitres of urine

• For instance (Blood):-

50 milligrammes of alcohol in 100 millilitres of blood  = 0.05 g/dl (grams per decilitre) = 0.05% BAC (Blood Alcohol Content)

• According to the Justice and Community Safety Directorate of the Government of the Australian Capital Territory (ACT), the blood alcohol content begins to rise as soon as a person starts drinking and it takes 30 to 60 minutes after a person stops drinking for the blood alcohol content to reach its highest concentration.
• If you google online, you will come across tons of advice and guideline as to how much you should drink to keep under 0.05% BAC. One of most common advice is to have not more than a standard drink every hour, standard drink usually refers a glass of beer.
• However, the alcohol content in our body is affected by many factors, your body size, fat ratio, medications you take, have you eaten, how much sleep you had, physical condition, liver condition, and the type of alcoholic drink you had, etc. It simply means there can be no standard number of beers that you can drink to drive.

Q3: What are the penalties for a drink driving conviction introduced by the Amended Act 2020?

• The Amended Act 2020 provide much stricter penalties and/or punishments for the offences committed under S.44 & S.45.

Q4: If a police officer stops me at a roadblock and requires me to carry out a breath test, do I have to comply with the police officer’s order?

• Yes.
• If a police officer has reasonable cause to suspect that you committed an offence involving intoxicating liquor, they may request that you provide breath, blood or urine samples for testing
• In the case that you fail to provide such samples without a reasonable excuse, you shall be guilty of an offence under S.45B under which you may be sentenced for:-
  • imprisonment for a term not exceeding 2 years; AND

• • Fine between RM 10,000 and not more than RM30,000.; AND

• • A suspension of driving license for at least 2 years.

Q5: What will happen to me if my breath test result turns out to exceed the prescribed limit?

• In such a case, the police officer may arrest you without warrant under 45B(5).
• Then, the Police officer will bring you back to police station where further test will be conducted on your breath, blood and urine.
• Upon arrest, you shall have right to consult your lawyer. The detention shouldn’t last longer than 24 hours, but if the police have reasonable reasons to detain you for a longer period, they can apply to magistrate for a remand.
• In the event that the results of further test similarly indicated that your blood alcohol content exceed the prescribed limit, then you will likely be brought before a magistrate to be charged for drink driving.
• You will be given options to plead guilty, or to enter into defence.
• If you are charged under s.44 where someone died or is injured, then your driving license will be immediately confiscated until decision is given.

Conclusion

We hope, with the amendments of the Amended Act 2020 from October last year, the heavier and stricter punishment from the Amended Act 2020 will be a deterrent effect to drink driving in Malaysia.

Happy drinking, but please do not drink and drive. Cheers.

Author: Soo Jess Min, Intern

Editor: Patrick Tan Yan Hong