1. Is it an offence to drink and drive in Malaysia?

      It is an offence to drive a vehicle in Malaysia when the alcohol content in a person’s breath, blood or urine exceeds the prescribed limit under the Road Transport Act 1987. This offence is commonly known as “drink driving”, “drunk driving” or “driving under the influence”.

      Under Section 44 of the Road Transport Act 1987, a person commits an offence by causing the death of or injury to any other person while driving a vehicle while

      1. under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, or
      2. having an alcohol content in one’s breath, blood or urine which exceeds the prescribed limit.

      It is also an offence under Section 45A of the Road Transport Act 1987 for a person to drive, attempting to drive, or being in charge of a motor vehicle while having alcohol content in his/her breath, blood or urine which exceeds the prescribed limit.

      In addition to actually driving with an alcohol content exceeding the prescribed limit, it is also an offence under Section 45 of the Road Transport Act 1987 to be in charge of a motor vehicle while unfit to drive due to the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle.

    2. What is the prescribed limit of alcohol?

      The prescribed limit of alcohol as provided under Section 45G of the Road Transport Act 1987 is:

      1. 35 microgrammes of alcohol in 100 millilitres of breath;
      2. 80 milligrammes of alcohol in 100 millilitres of blood; or
      3. 107 milligrammes of alcohol in 100 millilitres of urine.

      According to the Justice and Community Safety Directorate of the Government of the Australian Capital Territory (ACT), the blood alcohol content begins to rise as soon as a person starts drinking and it takes 30 to 60 minutes after a person stops drinking for the blood alcohol content to reach its highest concentration.

    3. How many drinks can I have before reaching the prescribed limit of alcohol?

      The factors which can affect a person’s blood alcohol content include, the amount of alcohol a person drinks, the time period over which a person consumes alcohol, a person’s muscle to fat ratio, how long since a person has last eaten, a person’s weight, the health of a person’s liver, whether a person regularly drinks and the type of alcoholic drink a person consumes.According to the Justice and Community Safety Directorate of ACT, as a general guide to keeping a person’s blood alcohol content level below 0.05 grammes,

      • For men, they should not drink more than two standard drinks in the first hour and one standard drink each hour after that, whereas
      • For women, they should not drink more than one standard drink each hour.

      As a guide to estimate how much alcohol a person can drink, the Department of Health of the Australian Government has published a “Standard Drink Guide”.

      According to the Standard Drink Guide, a ‘standard drink’ is always equal to 10 grammes of alcohol. The Standard Drink Guide also sets out an estimate of the number of ‘standard drinks’ in different serves of alcoholic drinks.

      For example,

      • For a ‘full strength’ beer (4.8% alcohol content):
        • A small glass (285ml) of such beer is equivalent to 1.1 standard drinks, and a large glass (425ml) of such beer is equivalent to 1.6 standard drinks. 
        • A bottle (375ml) of such beer is equivalent to 1.4 standard drinks, and a can (375ml) of such beer is equivalent to 1.4 standard drinks.
      • An average restaurant serving of red wine (150ml) with an alcohol content of 13.5% is equivalent to 1.6 standard drinks. A standard serve of red wine (100ml) with 13.5% alcohol content is equivalent to 1.0 standard drink.
      • An average restaurant serving of white wine (150ml) with an alcohol content of 11.5% is equivalent to 1.4 standard drinks. A standard serve of white wine (100ml) with 11.5% alcohol content is equivalent to 0.9 standard drink.
      • An average restaurant serving of champagne (150ml) with an alcohol content of 12% is equivalent to 1.4 standard drinks.

      It is important to note that it is only a guide as alcoholic drinks come in different sizes, have different amounts of alcohol and have various effects on different persons.

    4. What are the punishments/penalties for a drink driving conviction?

      OffencePenalty
      Section 44 Offence (Causing Death/Injury)
      • Imprisonment for a term between 3 years to 10 years, and to a fine of between RM8,000 and RM20,000
      • Disqualified from holding/obtaining a driving license for not less than 5 years from the date of conviction

      If convicted again subsequently, will be disqualified from holding/obtaining a driving license for 10 years from the date of conviction.

      Section 45A Offence
      • Imprisonment for a term not exceeding 12 months, and to a fine of between RM1,000 and RM6,000

      If convicted again subsequently,

      • Imprisonment for a term not exceeding 2 years, and a fine of between RM2,000 and RM10,000
      • Disqualified from holding/obtaining a driving license for a period of not less than 12 months from the date of conviction (unless the Court thinks that there are special reasons to order otherwise, such as a more extended disqualification period)

    5. How will the police or relevant authorities know if a person has been convicted for the drink driving offences above?


      The particulars of a person’s conviction will be endorsed on one’s driving license, and the driving license will be suspended throughout disqualification.

    6. If a person has only been charged in Court and has not been convicted of any of the drink driving offences, is he/she allowed to drive?

      No. His/her driving license will be confiscated and suspended from the date one is charged in Court until the Court makes a final decision on the charge against him/her.

    7. What happens if a person’s driving license is suspended?


      Procedurally speaking, once the Court orders that a person’s driving license be suspended (i.e. during the disqualification period), he/she is not allowed to drive, or to apply for or obtain a driving license.[Refer to Sections 32(1) and 32(3) of the Road Transport Act 1987]

    8. What happens if a person drives with a suspended driving license?

      It is an offence to drive with a suspended driving license under the Road Transport Act 1987.It is an offence which is punishable with imprisonment for a term of not more than 1 year, or to a fine of not more than RM5,000 if the Court thinks that there are special circumstances which do not warrant a sentence of imprisonment.
      [Refer to Section 32(3) of the Road Transport Act 1987]

      Breath Test

    9. What is a breath test?

      A breath test involves a person providing a specimen of his/her breath by breathing into a breath analyser. The breath analyser will give an approximate measurement of the alcohol content in one’s blood (“Blood Alcohol Content/BAC”). If the blood alcohol content exceeds the prescribed limit of 80 milligrammes of alcohol in 100 millilitres of blood, he/she will be guilty of a drink driving offence.

    10. If a police officer stops a person at a roadblock and requires a person to carry out a breath test, does he/she have to comply with the police officer’s order?

      Yes, unless the person can provide a reasonable explanation for not doing so.

    11. When can a police officer ask a person to carry out a breath test?

      A police officer in uniform may require a person to carry out a breath test if the police officer has reasonable cause to suspect that that person is driving or attempting to drive under the influence of alcohol.

    12. Where is the breath test carried out?

      The breath test may be carried out either at or near the place where the person was asked to carry out the breath test. The police officer, if he thinks fit, may also require that the breath test be carried out at a police station specified by the police officer.

    13. What happens if a person does not comply with the police’s order to carry out the breath test?

      He/she may be liable for an offence which is punishable with a fine of between RM1,000 and RM6,000, and imprisonment for a term not exceeding 12 months.For a subsequent conviction, he/she will be liable to a fine of between RM2,000 and RM10,000, and imprisonment for a term not exceeding 2 years.

    14. Can a police officer require a person to carry out two breath tests, or require a person to carry out a blood/urine test?

      Yes, but only at a police station. The second breath test must be carried out at the police station, and the blood/urine test must be carried out at a police station or a hospital. However, the blood/urine test cannot be made at a police station unless the police officer has reasonable cause to believe that that person cannot provide his/her breath specimen for medical or other particular reasons. Other reasons include if the breath analyser is not available at the police station/not practicable to use a breath analyser at the material time.

    15. How many tests can a police officer require a person to take?

      A police officer can require a person to take a maximum of two breath tests and/or a blood or urine test.

    16. What happens if a person fails to provide a specimen of my breath, blood or urine for the necessary test?

      He/she may be guilty of an offence which is punishable with a fine of between RM1,000 and RM6,000, and imprisonment for a term not exceeding 12 months.For subsequent convictions, he/she is liable to a fine of between RM2,000 and RM10,000 and imprisonment for a term not exceeding 2 years. He/she will also be disqualified from holding/obtaining a driving license for a period of not less than 12 months from the date of conviction. The Court may order otherwise if the Court thinks that there are special reasons to do so.

    17. What if a person holds a probationary driving licence, i.e. a ‘P’ licence, and commits one of the offences above?

      He/she will be punished, if convicted, to the same penalties. His/her driving license will also be revoked.

      Arrest

    18. Can a police officer arrest a person without a warrant if I refuse to carry out the breath test?

      Yes. A police officer in uniform may arrest a person without a warrant if the police officer has reasonable cause to suspect that that person is driving, attempting to drive or is in charge of a motor vehicle while having alcohol in his/her body.

    19. Can a police officer arrest a person without a warrant after he/she carried out the breath test?

      Yes, a police officer in uniform may arrest a person without a warrant if, based on the breath test result, the police officer has reasonable cause to suspect that the proportion of alcohol in that person’s breath, blood or urine exceeds the prescribed limit.

      Detention

    20. Can a person be detained by the police upon being stopped and required to carry out a breath, blood or urine test by the police?

      Yes, after a police officer takes a specimen of a person’s breath, blood, or urine for the necessary test, a police officer can detain him/her until the police officer thinks that the alcohol content in his/her breath, blood, or urine does not exceed the prescribed limit anymore, such that he/she will not be committing any of the drink driving offences above.However, the police officer cannot detain a person if it is obvious that, based on his/her condition at the time, it is unlikely that he/she will drive or attempt to drive.

      Recent developments and debates

    21. What are the recent developments/debates relating to drink driving offences in Malaysia?

      Due to the recent rise in the number of accidents and deaths caused by driving under the influence of alcohol, the Government has proposed to make amendments to the Road Transport Act 1987. One of the discussions with the Attorney General’s Chamber includes considering investigating and charging offenders who caused injury/death to another person as a result of driving under the influence of alcohol under Section 300 of the Penal Code for murder, or Section 307 of the Penal Code for an attempt to murder.The Prime Minister of Malaysia, Tan Sri Muhyiddin Yassin has directed the Transport Ministry to draft amendments to the Road Transport Act 1987 to provide stiffer punishments for offenders who are found guilty of driving under the influence of alcohol. The proposed amendments include heavier and mandatory penalties for driving under the influence of alcohol and causing death/injury to another person (i.e. the Section 44 Offence).

    22. What are the penalties for Section 300 (murder) and Section 307 (attempt to murder) of the Penal Code?

      A conviction for murder under Section 300 of the Penal Code will be punished with a death sentence. A conviction for an attempt to murder will be punished with imprisonment up to 10 years and a fine. The penalty is 20 years if an offender has caused hurt to the person of whom he/she attempted to murder.

    23. What are the differences between the laws governing drink driving in Malaysia and other countries?

      In Western Australia, it is an offence if a person drives or attempts to drive while having a blood alcohol content of or above 0.05 grammes of alcohol per 100 millilitres of blood.It is interesting to note that the Road Transport Act 1974 in Western Australia provides different penalties for different levels of blood alcohol content. More significantly, the penalties are harsher for those who drive while having a blood alcohol content of or above 0.08 grammes of alcohol per 100 millilitres of blood.As reported by MalaysiaKini, in Canada, an offender who drinks and drives under the influence of alcohol and causes death to another person is punishable with life imprisonment. In contrast, an offender who causes injury to another person is liable to imprisonment of up to 14 years.

      In the United Kingdom, an offender who drinks and drives under the influence of alcohol and causes death to another person is punishable with imprisonment of up to 14 years and an unlimited fine and suspended driving license.

      In Taiwan, the Government has recently amended its penal code which categorised driving under the influence of alcohol and causing death as a murder offence, which is punishable with a death sentence.

    24. What are one’s rights when one is arrested and detained by the police? What are one’s rights in Court if one is subsequently brought to the Court to be charged?

      You can read about the relevant procedures and one’s rights during a police arrest and detention in an article which we have published on our website entitled FAQ on Arrest, Remand and Bail in Malaysia.

      By Vivien Fan & Phui Kar Ling

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      Note: This article does not constitute legal advice. As the facts and circumstances of every case will differ, it is best that you obtain legal advice suited for the issues that you may be facing. Feel free to contact us for a complimentary legal consultation.