Under the premise of not offending the social order of public interests, people shall have the freedom of movement to arbitrarily head to another location at any time or remain at a certain premise, as is protected under Article 22 of the Constitution (with reference to J.Y. Interpretation Nos. 535 and 689 of this Yuan). This freedom of movement shall include the freedom of operating a motor vehicle or any other transportation vehicles. Moreover, Article 15 of the Constitution clearly stipulates that people’s right to work shall be protected. Provided above mentioned freedoms and rights accord with the conditions in Article 23 of the Constitution, proper restraints set by statutes or by regulations explicitly authorized by law are not forbidden by the Constitution.
According to law, the duty of a police officer is to maintain public order, to protect social security, to prevent all kinds of harms, and to advance people’s welfare (with reference to Article 2 of the Police Act). Where danger already exists or may result according to objective and reasonable judgment, the police shall have the right to pull over such transportation vehicles and request the driver to take a sobriety test to determine the alcohol concentration (hereinafter referred to as “sobriety test”; with reference to Article 8, Paragraph 1, Subparagraph 3 of the Police Duties Enforcement Act, Article 185-3 of the Criminal Code, Article 35 of the Road Traffic Management Penalties Regulation and Article 114, Subparagraph 2 of the Road Traffic Safety Regulation). The driver shall be obligated to cooperate pursuant to the law. The competent authorities have, in accordance with the abovementioned laws, stipulated operation procedures to combat driving under influence and regulated the procedure for the police to perform sobriety tests on those suspected of driving under influence. If the subject refuses to take the sobriety test, the police should first try to advice against the refusal and inform the subject of the legal consequences of refusing the test. If the subject continues to refuse the sobriety test, a penalty shall be imposed.
In order to strengthen road traffic management, maintain traffic order and ensure traffic safety, the legislators enacted the Road Traffic Management Penalties Regulation (see Article 1 of the same Regulation; hereinafter referred to as the “Disputed Regulation”). Given that driving under influence is one of the main causes of traffic accidents, legislators have in accordance with Article 35, the preceding part of Paragraph 4 of the Disputed Regulation stipulated that, if the vehicle operator refuses the sobriety test of the same Article, Paragraph 1, Subparagraph 1, a NT$60,000 fine will be imposed with immediate seizure of the driver’s motor vehicle and suspension of the driver’s license. Article 67, the preceding part of Paragraph 2, of the Disputed Regulation further provides that a vehicle operator, whose driver’s license has been suspended in accordance with Article 35, the preceding part of Paragraph 4, shall not take/receive the driver’s license within three years. Article 68 of the Disputed Regulation promulgated on December 14, 2005 further states that any vehicle operator whose driver’s license was suspended due to violating Article 35, the preceding part of Paragraph 4 shall also be suspended of all licenses for all types of motor vehicles. The above mentioned suspension of the driver’s license in accordance with Article 35, the preceding part of Paragraph 4 of the Disputed Regulation, Article 67, the preceding part of Paragraph 2, and Article 68 in relation to the violation of Article 35, the preceding part of Paragraph 4 (hereinafter together referred to as the “Disputed Provisions”), takes into consideration of road and traffic safety and the protection of public interests, which are appropriate objectives. Moreover, the method of suspending the driver’s license can also encourage the driver to consent to the sobriety test, consequently deterring the improper behavior of driving under influence and preventing traffic accidents, thus helping to achieve the purpose set forth above.
In order to strengthen the ban on driving under influence and to ensure traffic safety, legislators passed an addendum to Article 185-3 of the Criminal Code on April 21, 1999 (subsequently amended to double the statutory penalty on January 2, 2008 and November 30, 2011). Pursuant to statistics collected from 1999 to 2001 by the National Police Administration, casualties resulting from driving under influence have increased year after year. As a result of vehicle operators’ refusal to take the sobriety test or their objective to evade penalties against public safety offenses under Article 185-3 of the Criminal Code, legislators subsequently amended Article 35 of the Disputed Regulation on January 17, 2001 to increase the punishment for refusing to take the sobriety test (with reference to Volume 91, Issue 40, Page 577 et seq. of the Gazette of the Legislative Yuan, proposal explanation by Legislator John Chang, etc.), so as to avert any loopholes when controlling driving under influence and to effectively deter driving under influence. All methods adopted by the Disputed Provisions have the effect of preventing the offender from taking chances to evade the sobriety test and encourage vehicle operators to cooperate with the test. Additionally, a more moderate means of achieving the same effect is still lacking, hence the Disputed Provisions should be acknowledged as necessary means to achieve the aforementioned legislative purpose.
The penalty for the Disputed Provisions impedes the freedom of movement of driver’s license holders, which is protected under the Constitution, yet drivers have the obligation to cooperate with the sobriety test in accordance with the law. In addition, driving under influence not only endangers the life, body, health and property of others and the person himself, it also obstructs public safety and traffic order, the legal interest lies between limiting and protecting without losing balance. As for professional drivers or other professions that rely heavily on operations of motor vehicles as part of their jobs (such as delivery persons, food trucks), apart from the limit on one’s freedom of movement and restrictions on their right to work, they should follow road traffic safety rules and regulations even more closely and possess a higher moral for driving than ordinary vehicle drivers. Those professional drivers punished with suspension of their driver’s licenses due to violation of the Disputed Provisions should not be subject to a lesser penalty because of their right to work. Under the condition that the police officer has first advised and informed the subject of the legal consequence if refusing to take the test, the subject is obviously informed of the penalties and yet continues to refuse the sobriety test, the methods of punishment imposed by the Disputed Provisions are not excessive. In summary, it is difficult to conclude that the Disputed Provisions contradict the principle of proportionality in Article 23, as they do not infringe the constitutional safeguards of people’s freedom of movement and right to work.
Although the Disputed Provisions do not contradict the principle of proportionality, legislators should have legislative discretion to adopt provisions with separate measures based on different situations. Provided that law enforcement can realize the legislative intent, careful consideration of the specific circumstances of each case, such as whether a driver has previous records of driving under influence or refusing the sobriety test, the type of vehicle being operated when the driver refused the sobriety test, or whether the driver relies on the suspended professional driver’s license for livelihood and other factors, is a proper measure. With regard to the examinations of the Disputed Regulation testing driving under influence, the methods, procedures and other pertinent issues should be in accordance with the law or clearly legally authorized regulations; and the competent authorities should conduct and specify an overall review to amend the relevant provisions with this intention in mind.
Translated by Spenser Y. Hor, Esq. and Chien Yeh Law Offices