a. Obligation to submit to a screening breath test
The major statute governing the obligation to submit to a screening breath test is found in section 39B of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong). It basically provides that a police officer in uniform may require anyone who is driving or attempting to drive or is in charge of a motor vehicle to provide a specimen of breath for a screening breath test; and it shall be an offence if anyone without reasonable excuse fails to provide the specimen of breath when required. In other words, it empowers a police officer in uniform to conduct random breath testing whether or not there is any accident involved.
Mr. D, while driving, was stopped by the police for a random breath test. Mr. D, who had just attended a rave party, was perfectly aware that the alcohol level in his body definitely exceeded the statutory prescribed limit. In the hope of getting away with the charge of drink driving under section 39 or 39A of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong), he made up an excuse: “The breath test tools may be infectious” and refused to take the screening breath test. Would his plan work?
Ms. D had a few drinks at a bar and then drove home. She was stopped on the way by the police for a random breath test. Ms. D knew that she couldn’t refuse to do the test. But she deliberately blew around the mouth piece instead of into it. Would her plan work?