Breath Analyser for Legal Assistance
Alcohol kills 2.6 lakh Indians every year either by causing liver cirrhosis, cancer or leading to road accidents caused by drunk driving. The per capita alcohol consumption in India has increased two folds between 2005 and 2016, according to the Global status report on alcohol and health 2018 released by the World Health Organization (WHO). The scope of this discussion here is the role of a breath analyser in drunken driving cases. With the aim of raising awareness about road safety as well as curbing motor vehicle accidents, a new way of thinking is required. In 2006, India overtook China as the single largest contributor to the global number of road deaths. The breath analyzer test is important evidence both for criminal prosecution and insurance cases and often failure to record it at first instance comes to rescue the accused.
With time, the need for an electronic device was there which was already in use in some western and other developed countries is called the “Breathalyser” was introduced in India too. What is Breathalyzer or Breath Analyzer? Robert Frank Borkenstein, Indiana State Police(America) captain and professor invented the first known breathalyzer. It is equipment that evaluates or checks the level of alcohol in the blood by using the sample of breath. For checking the level of alcohol content, a suspect is asked to blow into the straw attached to the device, which not only takes the picture of the suspect automatically but also sends the data to traffic police headquarter. Due to the popularity of this way of testing for Blood Alcohol Concentration (BAC), the word “Breathalyzer” has made its way into modern English usage. Breath analyzers do not directly measure blood alcohol content or concentration, which requires the analysis of a blood sample. Instead, they estimate BAC indirectly by measuring the amount of alcohol in one’s breath.
Types of Breathalyzers & Testing Technique
Any person who is under the suspicion of taking the intoxicating element is asked to exhale through the straw which is attached to the device. The different types of breath analysers and various test to check alcohol content are as follows-
(i) Conventional Breathalyzers which uses the mechanism of chemical reaction of colour change which is then used to determine the level of alcohol in the air.
(ii) Intoxilyzer which uses infrared spectroscopy to detect the level of ethanol in a person breath.
(iii) Alco-Sensor:– It produces precise, accurate, and repeatable results. It is an electrochemical fuel cell sensor that generates an electrical response that is proportional to the Breath Alcohol Concentration in the provided, fixed volume sample. The fuel cell sensor is highly selective for alcohol.
(iv) Roadside Sobriety Tests: The common physical/mental manifestations of alcohol/drug impairment may be assessed through standardized roadside tests to identify impaired persons. The commonly used tests in the U.S. include- HGN Test & Divided Attention Tests. HGN Testing– Horizontal Gaze Nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of centre. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater.
(v) Divided Attention Tests– require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises that are easily performed by most sober people.
(vi) Walk-And-Turn Test: The subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps
(vii) One-Leg Stand Test: The suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (one thousand one, one thousand two, etc.) Until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.
In India, any person having in his blood, alcohol exceeding 30 mg per 100 ml. of blood as detected in a test by a Breath Analyzer, or being under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, is liable to be charged for impaired driving under Section 185 MVA’88. The punishment for the same can extend up to 2 years imprisonment and/or fine up to Rs. 3000/-. More significantly the court convicting a person for the offence of alcohol/drug-impaired driving shall disqualify him from driving for a period of at least 6 months. The court shall cancel his driving license in case he is again convicted for the same offence. The Licensing Authority may also likewise suspend/revoke his driving license.
When does one take a Laboratory Test? The breath test is, however, basically a preliminary screening test of the suspect to be followed by a more reliable and confirmatory Laboratory Test. The preliminary screening is necessary as it is not practicable to administer a full-fledged laboratory test in field conditions. The preliminary screening makes the basis for the police officer’s suspicion more scientific, objective and credible, thus minimizing the possibility of any innocent of being unnecessarily subjected to the inconvenience of a laboratory test. The police officer may thus require any person, who has been arrested for alcohol/drug-impaired driving, while he is at the police station, to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test.
Indian Motor Vehicle Act,1988? MV Act 1988 on Drunken Driving Case
Section- 185: Driving by a drunken person or by a person under the influence of drugs.
Whoever, while driving, or attempting to drive, a motor vehicle,
(a) has, in his blood, alcohol exceeding 30mg. per 100 ml. of blood detected in a test by breath analyzer( or any other test including the laboratory test) or
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle,
shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine( of ten thousand rupees), or with both and for a second or subsequent offence, with imprisonment for a term which may extend to two years, or with fine(of fifteen thousand rupees ) or both.
Section 185 of the Motor Vehicles Act creates a criminal offence. The short title of Section 185 undoubtedly proclaims that it purports to deal with driving by a drunken person or by a person under the influence of drugs. The offence as far as driving by a drunken person is concerned, was built around breach of an objective standard, viz., the presence of alcohol in the driver in excess of 30 mg per 100 ml of blood detected in a test of breath analyser. The Section mandates the proving of the objective criteria of the presence of alcohol exceeding 30 mg per 100 ml. of blood in a test by a breath analyser.
Expressing concern over increasing incidents of drunk driving, the Madras High Court in a case reported in Business Standard in 2019 mention that the Hon’ble court had directed the Centre to amend section 185 of the Motor Vehicles Act so that there is a zero-tolerance policy when it comes to such occurrences. Observing that the effect of alcohol in the matter on an individual can vary widely, the judge said factors such as overcrowded roads, pedestrian movement, absence of sufficient sidewalks or pavements, general indiscipline and indifference to traffic regulations should also be considered. It is not possible to countenance an argument that any person has a fundamental right to drink, let alone to drink any amount and then get behind the wheel of a motor car or onto a two-wheeler. Even the most minute impairment caused by alcohol intake might have the most disastrous consequences, the judge pointed out.
Who can take the breath test? “
Motor Vehicle Act 1988, Section -203
(1) A police officer in uniform or an officer of the Motor Vehicle Department, as may be authorized on this behalf by that Department, 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 breath test there or nearby”.
Impact Clinking glasses of beer or whisky with loved ones while driving, can cloud the mind and ultimately it leads to disaster on the road. Sporting the wheel of the vehicle being drunk driving is the primary cause of death. This type of irresponsible act costs not only to owner, driver or co-passenger of the vehicle but also the fellow rider and as well as insurance companies.
It is here that Section 203 of the Motor Vehicles Act becomes apposite. It empowers the police officer to 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 if the Police Officer or Officer of the Motor Vehicle Department has reasonable cause to suspect the driver has committed an offence u/s 185. Section 203(2) deals with the situation where the vehicle is involved in an accident in a public place. In such circumstances, on a Police Officer in uniform entertaining any reasonable cause to suspect that the person driving the vehicle, at the time of the accident, had alcohol in his blood, inter alia, he may require the person to provide a specimen of his breath in the breath test in the manner provided.
Section 203(6) declares that the result of the breath test made under Section 203 shall be admissible in evidence.
In case the motor vehicle being driven by such a person is involved in an accident in a public place he may be asked to provide one or more specimens of breath for a breath test at the hospital (in case he is hospitalized) or otherwise on the spot or at the nearest Police Station. If it appears to the police officer in uniform, in consequence of a breath test so carried out by him on any such person that he has alcohol in his blood beyond the permissible limit, he may arrest that person without a warrant except while that person is hospitalized. The police officer can also arrest such a person if he refuses to or fails to take the breath test. In case of heavy intoxication, the suspect may actually ‘fail to provide a specimen of his breath, as most devices require a fairly long and continuous blowing of breath into the mouthpiece. Any person so arrested must, within two hours of his arrest, be subjected to a medical examination by a registered medical practitioner (described below) failing which; he must be released from custody.
Impact on the Cases where breath analyzer test is Omitted
It is clear that Section 185 deals with driving or attempting driving of a motor vehicle a person with alcohol in excess of 30 mg per 100 ml in the blood which is detected in a test of breath analyser. Being a criminal offence, it is indisputable that the ingredients of the offence must be established as contemplated by law which means that the case must be proved beyond reasonable doubt and evidence must clearly indicate the level of alcohol in excess of 30 mg in 100 ml blood and what is more such presence must be borne out by a test by a breath analyser. With effect from 01.09.2019, the following words have been added to Section 185, that is “or in any other test including laboratory test”.
(a) Sanjeev Nanda Case
It is to be noticed that this Court had occasion to deal with the question of whether the prosecution under section 185 can succeed in the absence of a test by a breath analyser. In the decision reported in State through PS Lodhi Colony v. Sanjeev Nanda, the accused 2012 (8) SCC 450 escaped from the scene of occurrence. He could not, therefore, be subjected to a breath test analyser instantaneously or to provide a specimen of his breath for a breath test or a specimen of his blood for a laboratory test. Dealing with these provisions, K.S. Radhakrishnan, J., in his concurring judgment has held as follows:
“82. The accused, in this case, escaped from the scene of occurrence, therefore, he could not be subjected to breath analyser test instantaneously, or to take or provide specimen of his breath for a breath test or a specimen of his blood for a laboratory test. The cumulative effect of the provisions, referred to above, would indicate that the breath analyser test has a different purpose and object. The language of the above sections would indicate that the said test is required to be carried out only when the person is driving or attempting to drive the vehicle. The expressions “while driving” and “attempting to drive” in the above sections have a meaning “in praesenti”. In such situations, the presence of alcohol in the blood has to be determined instantly so that the offender may be prosecuted for drunken driving. A breath analyser test is applied in such situations so that the alcohol content in the blood can be detected. The breath analyser test could not have been applied in the case on hand since the accused had escaped from the scene of the accident and there was no question of subjecting him to a breath analyser test instantaneously. All the same, the first accused was taken to AIIMS Hospital at 12.29 p.m. on 10-1-1999 when his blood sample was taken by Dr Madhulika Sharma, Senior Scientific Officer (PW 16). While testing the alcohol content in the blood, she noticed the presence of 0.115% weight/volume ethyl alcohol. The report exhibited as PW-16/A was duly proved by the doctor. Over and above, in her cross-examination she had explained that 0.115% would be equivalent to 115 mg per 100 ml of blood and deposed that as per traffic rules, if the person is under the influence of liquor and alcohol content in blood exceeds 30 mg per 100 ml of blood, the person is said to have committed the offence of drunken driving.
(b) Iffco Tokio General Insurance Company Ltd Vs. Pearl Beverages Ltd [Special Leave to Appeal (C) No.12489/2020]Porche Car met with an accident. The company repudiated the claim citing that at the time of the accident the driver was under the influence of alcohol. A policeman who reached on the spot could easily smell the alcohol out of the mouth of the accused. He even reported the same in the FIR. Even though the insurance company repudiated the claim but couldn’t support its stand in the absence of a breath analyzer report as the breath analyzer checkup was not done by the policeman, and the doctor also not reported alcoholic influence in an accused breath.
This case was decided in 2021. The court held that the insurance company can now reject your claim even in the absence of a breath analyzer test or blood test as contemplated under the Motor Vehicles Act. This is because a recent ruling by the Supreme Court states that “if the Breath Analyser or any other test is not performed for any reason, the insurer cannot be barred from proving his case otherwise.” The judgement was passed by a three-judge bench of Justices comprising UU Lalit, Indira Banerjee and K.M. Joseph. The Supreme Court was hearing an appeal filed by IFFCO Tokio General Insurance Company Ltd for an accident, which took place on November 22, 2007. “However, in cases, where there is no scientific material, in the form of test results available, as in the case before us, it may not disable the insurer from establishing a case for exclusion.” The totality of the circumstances obtaining in a case must be considered. The scope of the enquiry, in a case under the Consumer Protection Act, which is a summary proceeding, cannot be lost sight of. A consumer, under the Act, can succeed, only on the basis of proved deficiency of service. The deficiency of service would arise only with reference to the terms of the contract and, no doubt, the law which surrounds it. If the deficiency is not established, having regard to the explicit terms of the contract, the consumer must fail.
On the question of why the test is not necessary the judgment states: “It is not difficult to contemplate that the accident may take place with the driver being under the influence of alcohol and neither the Breath Test nor the laboratory test is done. A driver after the accident may run away. A test may never be performed. However, there may be evidence available that may indicate that the vehicle in question was being driven at the time of the accident by a person under the influence of alcohol. It cannot then be said that merely because there is no test performed, the Insurer would be deprived of its right to establish a case which is well within its rights under the contract.”
“The presence of alcohol in excess of 30 mg per 100 ml. of blood is not an indispensable requirement to enable an Insurer to successfully invoke the clause. What is required to be proved is driving by a person under the influence of alcohol.”
Conclusions
Many NGOs have come forward to suggest shunning drinking and driving by shifting roadside alcohol liquor shops and doing routine blood alcohol tests. However, omission of breath analyser test often put the rights of the accused and the insurance company at a greater risk. The above judgements have much clarified the present settled position of the importance of the use and the omission of the use of a breath analyzer.
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