Drunk Driving in India: Penalty, Licence Suspension and the Breathalyser

Driving with more than 30 mg of alcohol per 100 ml of blood is an offence under Section 185 of the Motor Vehicles Act, 1988. The first offence is punishable with imprisonment up to six months, or a fine of ten thousand rupees, or both. A second or subsequent offence is punishable with imprisonment up to two years, or a fine of fifteen thousand rupees, or both. On conviction the court must, under Section 20(2), disqualify the driver for a period of not less than six months. Section 185 is not in the list of compoundable offences in Section 200, so unlike a signal jumping challan it cannot be settled by paying an amount at the roadside.

Part of the criminal defence practice at S Jain & Attorneys, Bangalore.

Those four sentences are the whole outline. What clients actually need is the procedure between the checkpoint and the judgment: what a police officer may and may not require, what happens in the two hours after an arrest, what the refusal of a breath test does to the case, and what happens to the licence while the case is pending. That is what this guide covers.

What Section 185 makes an offence

Section 185 catches a person who, while driving or attempting to drive a motor vehicle, either has in his blood alcohol exceeding 30 mg per 100 ml of blood detected in a test by a breath analyser or in any other test including a laboratory test, or is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.

Two things follow from the drafting. First, the alcohol limb is a numerical test. There is no requirement to prove that the driving was bad or that anybody was endangered. The reading is the offence. Second, the drug limb has no number attached to it and is written as a capacity test: the prosecution must show that the driver was incapable of exercising proper control. The Explanation defines drug as any intoxicant other than alcohol, natural or synthetic, or any material notified by the Central Government, and includes narcotic drugs and psychotropic substances as defined in the Narcotic Drugs and Psychotropic Substances Act, 1985. Prescription medication that produces intoxication is not automatically outside the section.

The phrase "or attempting to drive" is doing real work. A person found in the driver's seat with the engine running is within the section even if the car has not moved. That is a point worth knowing before deciding to sit in a parked car and wait to sober up.

The penalty, and what the 2019 amendment changed

The current structure came in with the Motor Vehicles (Amendment) Act, 2019. Two features are commonly misreported. The fine is now a fixed figure rather than a ceiling: the section reads "with fine of ten thousand rupees" for the first offence and "with fine of fifteen thousand rupees" for a second or subsequent one. And the words that once limited the enhanced punishment to a repeat offence committed within three years of the previous one have been omitted, so a second offence attracts the higher punishment whenever it occurs.

The breathalyser: what an officer can require

Section 203 governs breath tests. Under sub-section (1), a police officer in uniform, or an officer of the Motor Vehicles Department authorised in that behalf, may 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. 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. The proviso protects the indoor patient: no specimen may be required unless the registered medical practitioner in immediate charge has first been notified and does not object on the ground that it would be prejudicial to the patient's care.

Two arrest powers sit inside Section 203. Under sub-section (3), if the device indicates the presence of alcohol, the officer may arrest without warrant, except while the person is a hospital indoor patient. Under sub-section (4), if the person refuses or fails to provide a breath specimen and the officer has reasonable cause to suspect alcohol, the officer may arrest without warrant on that basis alone.

Refusing the test is not a way out

This is the single most useful thing to know at a checkpoint. Refusal does not create a gap in the evidence. It creates two problems.

The first is the arrest power in Section 203(4) described above. The second is Section 205, which is titled presumption of unfitness to drive. It 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 breath specimen or a blood specimen, 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.

Section 204 then allows the blood test. A person arrested under Section 203 may, while at a police station, be required to provide a blood specimen to a registered medical practitioner produced by the officer, either because the breath device indicated alcohol or because the person refused the breath test. There is a protective proviso: where the person is female and the medical practitioner produced is male, the specimen may be taken only in the presence of a female, whether a medical practitioner or not. Under Section 204(3) the laboratory result is admissible in evidence, and the Explanation defines laboratory test as analysis at a laboratory established, maintained or recognised by the Central or a State Government.

The two hour rule after arrest

Section 202(1) allows a police officer in uniform to arrest without warrant any person who commits an offence under Section 184, Section 185 or Section 197 in his presence. Attached to it is a proviso that matters a great deal in practice: any person so arrested in connection with an offence punishable under Section 185 shall, within two hours of his arrest, be subjected to the medical examination referred to in Sections 203 and 204 by a registered medical practitioner, failing which he shall be released from custody.

That is an express statutory consequence, not a discretionary one. The section says he shall be released. Where the arrest memo, the hospital record and the medical examination report do not line up within two hours, the defence has a point that is available on the prosecution's own documents. It is worth noting the time of arrest yourself, and the time you were produced before a doctor, on the day it happens.

Section 202(2) allows arrest without warrant of any person who has committed an offence under the Act and refuses to give his name and address, and Section 202(3) permits the arresting officer to take proper steps for the temporary disposal of the vehicle.

What happens to the licence

The licence is affected on two separate tracks, and clients frequently confuse them.

The first track is administrative and starts before any conviction. Section 206(4) says that a police officer or authorised person shall, where he has reason to believe that the driver has committed an offence under Section 183, 184, 185, 189, 190, 194C, 194D or 194E, seize the driving licence and forward it to the licensing authority for disqualification or revocation proceedings under Section 19. Section 19(1A) then allows the licensing authority, after giving the holder an opportunity of being heard, either to discharge him or to disqualify him for three months for a first offence, or to revoke the licence for a second or subsequent offence. A proviso allows the name of a holder whose licence has been revoked to be placed in the public domain in the manner prescribed by the Central Government.

The second track is judicial and follows conviction. Section 20(1) gives a court a general power to disqualify a person convicted of an offence under the Act. Section 20(2) removes the discretion for drunk driving: where a person is convicted of an offence under Section 185, the court shall order disqualification, and the disqualification shall be for a period of not less than six months.

Separately, Section 19(1) allows the licensing authority to disqualify or revoke where the holder is a habitual criminal or a habitual drunkard, is a habitual addict to a narcotic drug or psychotropic substance, has used a vehicle in the commission of a cognizable offence, or has shown by previous conduct that his driving is likely to be attended with danger to the public. That power is independent of any single prosecution.

When drunk driving stops being a Motor Vehicles Act case

Where the driving causes injury or death, the Motor Vehicles Act charge is joined by, and usually overtaken by, charges under the Bharatiya Nyaya Sanhita, 2023. Section 106 deals with causing death by negligence. Section 281 deals with rash driving or riding on a public way. Section 125 deals with an act endangering the life or personal safety of others. Section 105 covers culpable homicide not amounting to murder.

The reason that last one matters is Alister Anthony Pareira v. State of Maharashtra, decided by the Supreme Court on 12 January 2012. A car driven under the influence mounted a pavement in Bandra, killing seven people who were sleeping there and injuring eight more, and the conviction under the then Section 304 Part II of the Indian Penal Code, along with Sections 338 and 337, was upheld. Drunk driving that results in death is therefore not confined to the negligence provision. Where the prosecution can establish knowledge that the act was likely to cause death, the culpable homicide provision is available, and the sentencing exposure changes entirely.

Once a death or grievous injury is alleged, this stops being a traffic matter and becomes a criminal defence matter, with bail, investigation and charge framing all in play. Our notes on anticipatory bail in India and the difference between regular bail and anticipatory bail set out how that stage works, and a Section 35 BNSS police notice explains the notice that often arrives first.

Insurance, employment and the collateral damage

Motor insurance policies in India ordinarily exclude liability where the driver was under the influence of intoxicating liquor or drugs. In practice an insurer confronted with a Section 185 charge will look hard at the own damage claim, and the position on the third party side is governed by the policy terms read with the statutory scheme. What that means for a claimant is that recovery may have to be pursued against the driver or owner rather than only against the insurer, which is a different and slower exercise. The compensation route for the injured party is dealt with separately in our guide on motor accident compensation claims in India, and the rules on rejected claims generally in insurance claim repudiation.

A conviction under Section 185 is a criminal conviction. It shows up in police verification, and it is disclosable on visa applications and employment forms that ask about convictions. That consequence outlasts the fine by many years, and it is the reason a Section 185 case should not be treated as an administrative nuisance to be disposed of quickly.

What to do at the checkpoint and afterwards

1. Stop, and give your name and address. Refusing to identify yourself is itself a ground for arrest without warrant under Section 202(2).
2. Note the officer's identity and the time. Section 203(1) requires a police officer in uniform or an authorised officer of the Motor Vehicles Department. Note the time of the requirement and the time of any arrest.
3. Understand what refusal costs. Refusal permits arrest under Section 203(4) and triggers the presumption in Section 205. It does not remove the evidence problem, it creates one.
4. Watch the two hour clock. If you are arrested for a Section 185 offence, the proviso to Section 202(1) requires medical examination within two hours, failing which you shall be released. Record when you were seen by a doctor.
5. Ask for the reading. Note the device reading, the make of the device and whether a second sample was taken. Calibration and maintenance records of the device are legitimately obtainable in the trial.
6. Get a receipt for anything seized. The licence, the vehicle and the documents. Section 206(3) requires a temporary acknowledgement for a licence seized under Section 206(2), and that acknowledgement authorises you to drive until the licence is returned or until the date specified.
7. Answer the licensing authority notice. The Section 19 proceeding is separate and carries its own right of hearing.
8. Do not plead guilty to clear the file. Section 20(2) makes a minimum six month disqualification automatic on conviction under Section 185. A plea entered to save a day in court costs six months of driving.

Points that are commonly assumed and are wrong

That you can pay a fine at the roadside and be done with it. You cannot: Section 200 does not include Section 185, and the officer has no power to compound it. That a low reading is a defence. Anything above 30 mg per 100 ml is the offence, and how far above goes to sentence, not to guilt. That the case can be settled with the complainant. There is no complainant in a Section 185 prosecution; the State is the prosecutor. That the licence is safe if the fine is paid. Section 20(2) makes disqualification mandatory on conviction, and Section 206(4) starts the licensing authority process well before conviction. Details on which offences can and cannot be settled are in our note on compoundable offences under the BNS, and the challan side of traffic enforcement in disputing an e-challan in Bengaluru.

Frequently Asked Questions

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.

Related Guides

If a Section 185 case has been registered, our criminal defence practice and our bail practice in Bengaluru handle the prosecution and the licensing proceeding together. These guides cover the neighbouring questions.

• Disputing an E-Challan in Bengaluru: How It Actually Works
• Motor Accident Compensation Claims in India
• Compoundable Offences Under the BNS: The List
• Types of Bail in India
• Regular Bail Versus Anticipatory Bail
• Served a Section 35 BNSS Police Notice? What It Means
• Zero FIR: How to Register an FIR in India
• Insurance Claim Repudiation