c. Obligation to provide specimens for analysis
In addition to the power to require a person to submit to a screening breath test, a police officer may require a person to provide specimens of breath for analysis or to provide a specimen of blood or urine for a laboratory test; and it shall be an offence if anyone without reasonable excuse fails to provide the specimen when required.
For analysis in relation to alcohol, section 39C of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that “A police officer may require a person whose screening breath test indicates that the proportion of alcohol in that person's breath is likely to exceed the prescribed limit or who fails to provide a specimen for the screening breath test with reasonable excuse-
- to provide 2 specimens of breath for analysis by means of an approved breath analysing instrument; or
- to provide a specimen of blood or urine for a laboratory test.”
While section 39B of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) caters primarily for the random breath testing that usually takes place on the road, this section 39C deals with the situation where the police may require a specimen of breath, blood or urine at a breath test centre, police station, or hospital. It should be noted that:
- 2 specimens of breath will be taken; and only the one with the lower alcohol level reading will be used as evidence against the accused person. (section 39D)
- If there is a medical reason why a specimen of breath cannot be provided, the police officer shall decide whether a specimen of blood or urine should be taken. (section 39C(2))
- However, if specimen of blood is to be taken from a person, the consent of this person must be obtained. (section 39C(11))
- It is an offence for a person to fail to provide a specimen of breath, urine or blood without reasonable excuse. (section 39C(15))
- A warning given to the accused person by the police officer at the time a specimen is required is also essential for section 39C to be operative: “A police officer shall warn a person at the time of requiring a specimen under this section that a failure to provide it may render him liable to prosecution”. (section 39C(18))
- The test for “failure” is similar to that under section 39B, i.e. a person fails to provide the required breath specimen unless the specimen “is sufficient to enable the analysis or laboratory test to be carried out; and is provided in a way to enable the objective of the analysis or laboratory test to be satisfactorily achieved”. (section 39C(19))
For test in relation to drugs, section 39P of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong) provides that an authorized police officer may require a person “to provide a specimen of blood or urine, or specimens both of blood and urine, for a laboratory test, if the police officer is of the opinion that the results of the Impairment Test indicate that his or her ability to drive properly is for the time being impaired.”
If a police officer has reasonable cause to suspect that a specified illicit drug is present in a person’s blood or urine, and a preliminary drug test could not be conducted due to medical reason or any other reasonable cause, the police officer may make the same requirement for the taking of specimen.
It should also be noted that:
- The requirement to provide any specimen has to be made at a breath test centre, police station or hospital. (section 39P(4))
- The police officer or authorized police officer must decide whether specimen of blood or urine or both are to be taken. (section 39P(5))
- A person must provide the specimen of urine within 1 hour of being required to provide it. (section 39P(7))
- It is an offence for a person to fail to undergo preliminary drug test (section 39O) or fail to provide a specimen without reasonable excuse. (section 39S)
- Specimen of blood cannot be taken from a person unless he or she consents. (section 39P(9))
- A warning given to the accused person by the police officer at the time a specimen is required is also essential for section 39P to be operative. (section 39P(8))
- If it appears to a police officer that a person is incapable of giving a valid consent due to medical reason, the police officer may request a medical practitioner to take a specimen of blood from that person. (section 39Q(1))
Even if blood specimen is taken from a person, it shall not be subjected to laboratory test unless the person has been informed that it has been taken, and has given consent to the analysis of the specimen. (section 39Q(4))
1. Ms. A’s vehicle hit the rear of the vehicle in front. The police officer who arrived at the scene found Ms. A unsteady on her feet, her voice slurred, and her breath smelt of alcohol. Due to Ms. A’s condition as such, the police officer found that no screening breath test could be conducted at the scene. Ms. A was later transferred to a hospital where she was still in an apparently drunken state. A police officer then required her to provide a specimen of urine for a laboratory test. Ms. A, seeing that no female police officer was present, refused to provide the urine specimen. The police officer and the doctor at the hospital then sought Ms. A’s consent to provide a blood specimen; she again refused by saying: “I don’t trust your doctor and your equipment. How do I know if your needle is contaminated with AIDS or not? I won’t give blood to you.” Eventually no breath, urine, nor blood specimen was taken. Was Ms. A entitled to make the above refusals?