1. 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?
The answer here is yes and no at the same time. Mr. D’s plan may enable him to get away with a drink driving charge. However, he would at the same time contravene section 39B, which provides that it shall be an offence if any person “without reasonable excuse, fails to provide a specimen of breath when required”. The excuse of being afraid of infection would not work unless there is medical evidence to prove that Mr. D is suffering from some kind of obsessive phobia. As a matter of fact, the sentence for failing to provide a specimen of breath is equivalent to or even more serious than that for “driving a motor vehicle under the influence of drink or drugs” or “driving with alcohol concentration above prescribed limit”. It is therefore really pointless for a driver to refuse to take a screening breath test.
Note that according to section 39B(5), the police officer must “warn a person at the time of requiring a specimen for a screening breath test…that a failure to provide it may render him liable to prosecution”. A failure to give the warning would therefore invalidate a charge under section 39B.
If one refuses to provide the specimen, that of course constitutes failure. But the word “failure” here does not simply means refusal. By section 39B(10), a person fails to provide the required breath specimen unless the specimen “is sufficient to enable the test to be carried out; and is provided in a way to enable the objective of the test to be satisfactorily achieved”.