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You drank, you are driving, the police stops you; what do you do?

Not published yet ago Elanor O.



This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.


This article in no way condones drunk driving and it should not be done under any circumstances whatsoever. However, we have all done it before. Going out with your friends and partying a little too hard, drinking a little too much. You decide to go back and hit the sack. You get behind the wheels and drive but you see a policeman directing you to pull up by the side of the road. What do you do? Do you start panicking?


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Gif by Modicum


If you find yourself in that situation, do not start to panic. You might have overestimated the the amount of drinks that you have drunk. 

How much is too much?

Based on Malaysia’s law, you would only be charged for drunk driving if your blood alcohol content (BAC) contains more than 80 milligrams per decilitre of blood, or 0.08%.  

It is stated under Section 45g of Road Transport  Act 1987:- 

―”prescribed limit” means—

(a) 35 microgrammes of alcohol in 100 millilitres of breath;

(b) 80 milligrammes of alcohol in 100 millilitres of blood; or

(c) 107 milligrammes of alcohol in 100 millilitres of urine

To put that in perspective, that would be one standard drink per hour. According the National Institute on Alcohol and Abuse, one standard drink would mean one 354 millilitres-mug of beer, one 147 millilitres-glass of wine, and one 44 millilitres-shot of hard liquor. The only way you could actually reach 0.08% of alcohol in your blood is to chug down 3 of either of the drinks mentioned in a very fast pace within an hour.


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Chug chug chug chug! Gif by Gfycat

When you get stopped by a policeman and he suspects you of drunk driving, remember that under Section 45c (1) of Road Transport Act 1987, the policeman must require you to provide a specimen of your breathe or urine to test the limits of alcohol content:-

45C. (1) In the course of an investigation whether a person has committed an offence under section 44 or 45 involving intoxicating liquor … require him—

(a) to provide two specimens of breath for analysis by means of a prescribed breathanalyser; or

(b) to provide a specimen of blood or urine for a laboratory test...

It must be remembered that a specimen of blood or urine can only be obtained in a police station or hospital. However, samples cannot be made in a police station if and only if the policeman reasonably believes that a breath specimen could not be obtained due to medical reasons or the breathanalyser was not available at that time. Also, specimens of blood or urine can only be obtained in a police stations or hospital, as stated under s.45c (4):-


(4) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital, but it cannot be made at a police station unless—

(a) the police officer making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required;

(b) at the time the requirement is made, the prescribed breathanalyser is not available at the police station or it is for any other reason not practicable to use the breathanalyser, and may be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.

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Gif from Tenor


What happens if you fail to provide a specimen when it is required? 

According to s.45c (6), if you fail to provide a specimen when require by the policeman without a reasonable excuse, you would be found guilty and convicted accordingly. The punishments as stated are:- 

(6) … shall on conviction be punished with a fine of not less than one thousand ringgit and not more than six thousand ringgit and shall also be liable to imprisonment for a term not exceeding twelve months and, in the case of a second or subsequent conviction, a fine of not less than two thousand ringgit and not more than ten thousand ringgit and shall also be liable to imprisonment for a term not exceeding two years


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What happens if the policemen do not act accordingly?

If the policeman does not want to accept your request of providing any specimen and insists on bringing you to the police station, you could refuse to follow. Another reason to resist an arrest would also be if the sole reason is that you are a witness and the policeman wants to take a statement from you, acording to 2.4 of the Red Handbook document. However, stated under 2.3 of the Red Handbook, if the policeman does not specifically announce that you are arrested when asked, you could actually leave. Other ways to confirm your arrest would be:-

2.3 ... if the Police:

- tell you "yes";

- do not allow you to leave/want to take you to the Police Station; or

-handcuff you.


If you do not want to make a scene on the spot, you could ask them to issue a summon and then lodge a report against the officer the next day. Do not worry about whether the policemen in the police station would accept your complaint. It is stated under the Criminal Procedure Code:-

Section 107(4) Criminal Procedure Code – Information of Offences

‘A police officer shall be duty bound to receive any information in relation to any offence committed anywhere in Malaysia.’


What happens if your BAC is over the legal limit?

You would then be disqualified of driving and if you are under probationary license, it would be revoked. You would also be fined and/or imprisoned as stated under  s.45a (1), s.45a (3) and s.45a(4) of Road Transport Act 1987. This is a very serious offence guys but I am pretty sure you know that duhhh. 


Kids, stay in school. Image by Spirit Newspaper


Remember to practice your basic rights


Do not feel like you have to comply with the orders of a policeman even though you have not done anything wrong. Make sure you remember your facts and to practice your own fundamental rights:

Article 5(3) of Federal Constitution:

(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice


Always be careful

But of course, despite the loopholes of still being able to drive after drinking, safety must always be the top of your priority. Drunk driving endangers the life of not only yourself, but the public. Just because you have not had drinks that could exceed 0.08% of your BAC, that does not mean you are still fit to drive due to your alcohol tolerance level (this is why you see some people rolling on the floor even after one shot of vodka). You can have fun, but remember that you are a responsible adult! (sort of)


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