This is the single most useful thing to know at a check point, and the intuition most people bring to it is exactly wrong. Refusing a breath test does not create a gap in the prosecution evidence. It creates three problems, each of them expressly provided for in the Act.
What the officer may require
Section 203(1) of the Motor Vehicles Act, 1988 allows a police officer in uniform, or an officer of the Motor Vehicles Department authorised in that behalf, to require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for a breath test there or nearby, if the officer has reasonable cause to suspect an offence under Section 185, and the requirement must be made as soon as reasonably practicable after the commission of the offence. Sub-section (2) deals with accidents: where a vehicle is involved in an accident in a public place and a uniformed officer has reasonable cause to suspect that the driver had alcohol in his blood or was under the influence of a drug, he may require a breath specimen, at the hospital if the person is an indoor patient and otherwise at or near the place or at a police station. There is a protective proviso for the indoor patient: no specimen may be required unless the registered medical practitioner in immediate charge has first been notified of the proposal and does not object on the ground that it would be prejudicial to the patient's proper care or treatment.
The three consequences of refusing
- Arrest. Section 203(4) allows an officer to arrest without warrant a person who refuses, omits or fails to provide a breath specimen where the officer has reasonable cause to suspect alcohol in his blood. Sub-section (3) separately allows arrest without warrant where the device indicates the presence of alcohol, except while the person is a hospital indoor patient.
- A blood test anyway. Section 204(1) allows a person arrested under Section 203 to be required, while at a police station, to provide a specimen of blood to a registered medical practitioner produced by the officer, either because the device indicated alcohol or because the person refused the breath test. Section 204(3) makes the laboratory result admissible in evidence, and the Explanation confines a laboratory test to analysis at a laboratory established, maintained or recognised by the Central or a State Government.
- A presumption against you. Section 205 provides that in a proceeding for an offence under Section 185, if it is proved that the accused, when requested by a police officer, refused, omitted or failed to consent to providing a specimen of breath or blood, that refusal may, unless reasonable cause is shown, be presumed to be a circumstance supporting the prosecution evidence or rebutting the defence evidence about his condition at the time.
Where the person required to provide a blood specimen is female and the registered medical practitioner produced by the police officer is male, the proviso to Section 204(1) requires that the specimen be taken only in the presence of a female, whether a medical practitioner or not. That is a condition of the taking, and it is worth stating at the time rather than complaining about afterwards.
What is legitimate to insist on
- That the officer is in uniform, or is an authorised officer of the Motor Vehicles Department. The section names who may require the test.
- That the reading is shown to you and noted, along with the make of the device and whether more than one specimen was taken. The section speaks of one or more specimens.
- Your own record of the timings. The time of the requirement, the time of any arrest and the time you were produced before a doctor. Where an arrest is made in connection with a Section 185 offence, the proviso to Section 202(1) requires the medical examination under Sections 203 and 204 within two hours of arrest, failing which the person shall be released from custody.
- The condition of the device. Calibration and maintenance records are legitimately obtainable at the trial, and so is the question whether the laboratory used meets the description in the Explanation to Section 204.
Those are the points a defence is actually built on. They are recorded at the roadside and argued later. Our guide on drunk driving penalties and licence suspension takes the procedure from the check point through to the judgment and the licence proceedings.
Two related situations
The first is medication. The drug limb of Section 185 has no numerical threshold and is written as a capacity test, requiring that the person be under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, and the Explanation defines a drug as any intoxicant other than alcohol, natural or synthetic, or any material notified by the Central Government, including narcotic drugs and psychotropic substances. Prescription medication that produces intoxication is not automatically outside the section.
The second is the vehicle. Where a person is arrested under Section 202, sub-section (3) permits the arresting officer to take proper steps for the temporary disposal of the vehicle. Getting it back is a separate exercise from the prosecution, with its own forum and its own material, and the routes are in our note on getting a seized vehicle released in Karnataka.
The short practical rule is this. Refusal buys nothing. Cooperation with the test, combined with a careful contemporaneous record of who did what and when, is the position from which a Section 185 case is actually defended.