b. Obligation to undergo drug test

b. Obligation to undergo drug test

Screening breath test is only for assessing whether a driver has alcohol in his body. In the case of drugs, a police officer is equipped with similar power to require a driver to undergo drug test. The relevant law, however, are quite complicated. Let’s try to go through the relevant details.

If a police officer has reasonable cause to suspect that a person:   

• has been driving or attempting to drive, or has been in charge of, a motor vehicle with specified illicit drug present in his blood or urine, or under the influence of any drug (section 39M(2)(a) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)); or
• has been driving or attempting to drive, or has been in charge of a motor vehicle and has committed a traffic offence while the motor vehicle was in motion (section 39M(2)(b) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)); or
• was driving or attempting to drive, or was in charge of, a motor vehicle at the time of an accident which occurs owing to the presence of that motor vehicle on the road (section 39M(3) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong))

then the police officer may require that person to undergo one or more of the following preliminary drug test:

• a Drug Influence Recognition Observation; or
• an Impairment Test.

(section 39M(1) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong))

A Drug Influence Recognition Observation can take place anywhere; but an Impairment Test must be carried out at a police station (sections 39M(7) and 39M(8) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

Despite that any police officer can require a person to undergo preliminary drug test, only certain authorized police officer can conduct the test (section 39T(5) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

And if an authorized police officer has conducted a Drug Influence Recognition Observation on a person and does not opine that he was under the influence of a drug, he is not obliged to undergo an Impairment Test (section 39M(4) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).

And when a police officer requires a person to undergo a preliminary drug test, he must also warn the person that failure to undergo the test may render him liable to prosecution (section 39M(6) of the Road Traffic Ordinance (Cap.374 of the Laws of Hong Kong)).