I. Facts Relevant to the Petition, Summary of the Petitioner's Statements, Evolution of Relevant Regulations, etc.
1. Facts Relevant to the Petition
The petitioner of this case is a judge from the Criminal Division of the Taiwan Hualien District Court. In hearing the cases of 107-YuYuanJiaoYi-1 and 107-HuaYuanJiaoJian-403 concerning offenses against public safety, the petitioner believed that the pertinent Article 35, Paragraph 5 of the Road Traffic Management and Penalty Act, as amended on January 30, 2013 (hereinafter referred to as “the Provision at Issue I”); Article 19-2, Paragraph 5, Subparagraph 2 of the Uniform Punishment Standard Forms and Rules for Handling the Matters of Violating Road Traffic Regulations; Article 10, Paragraph 4 of the Regulations Governing Road Traffic Accidents; Article 8, Subsection 2, Item 4 of the Directions for Handling Road Traffic Accidents; Schedule 3(2)3 of Article 2 of the Directions for Police Officers when Implementing Compulsory Actions on Drunk Driving Individuals (collectively hereinafter referred to as “the Provision at Issue II”), have all violated the Constitution. Based on Judicial Yuan Interpretation Nos. 371, 572, and 590, the petitioner suspended the proceedings of the cases and lodged a petition for constitutional interpretation on August 20, 2018.
2. Summary of the Petitioners’ Statements
The petitioner asserts that the Provision at Issue I, regarding a driver’s actions resulting in an accident and their refusing to or being incapable of taking the breath alcohol concentration test, allows the traffic police officers or personnel conducting traffic inspections to send the driver in a mandatory manner to a medical or inspection agency to conduct a blood alcohol concentration test, without applying for a warrant from the court in advance and without any mechanism of applying for a warrant afterwards. This is unconstitutional in violation of the principle of prior review by judge, warrant requirements, and due process of law. Additionally, the lack of relevant professional qualifications for medical or inspection agencies and inspection personnel, and the absence of provisions safeguarding the right to privacy of those subjected to compulsory testing, infringe upon the fundamental rights to information privacy under Article 22 of the Constitution and freedom from bodily and mental harm, etc. Moreover, the Provision at Issue II is subordinate to the Provision at Issue I, and since the Provision at Issue I is unconstitutional, it should not be used as the basis of the inferior legislation, so the Provision at Issue II is also unconstitutional in violation of the principle of legal reservation.
3. Relevant Regulations and Their Evolution
The Provision at Issue I stipulates that "Should a driver whose actions result in an accident and who refuses or is incapable of taking the test as described in Paragraph 1, the traffic police officers or personnel conducting traffic inspections under laws and regulations shall send the driver in a mandatory manner to a medical or inspection agency to collect a blood or other body fluid sample and conduct the test." This content was first introduced in the draft amendments to the Road Traffic Management and Penalty Act submitted by the Executive Yuan to the Legislative Yuan on December 7, 1999. The Legislative Yuan adopted this draft and added Paragraph 4 to Article 35 on January 17, 2001, effective from June 1 of the same year. This provision was later moved to Paragraph 5 during the amendment of December 28, 2005, without changing its content. Although subsequent amendments to this article occurred on January 19, 2011, May 30, 2012, and January 30, 2013 (hereinafter referred to as the "2013 Version"), Paragraph 5 remained unchanged. When this article was amended on April 17, 2019, the original Paragraph 5 was moved to Paragraph 6, adding the word "motorcycles", effective from July 1, 2019. Since the term "cars" in the Road Traffic Management and Penalty Act originally included motorcycles (referring to Article 3, Subparagraph 8), this amendment did not change the regulatory content of Article 35, Paragraph 5 in the 2013 Version. Another amendment of Article 35 occurred on January 28, 2022, but Paragraph 6 was unchanged. The facts relevant to the two cases for this petition occurred on January 17, 2016, and March 20, 2018, respectively. Therefore, the applicable provision should be Paragraph 5 of Article 35 in the 2013 Version (i.e., the Provision at Issue I).
The "Uniform Punishment Standard Forms and Rules for Handling the Matters of Violating Road Traffic Regulations" and the "Regulations Governing Road Traffic Accidents" in The Provision at Issue II were formulated under the authority granted by Paragraphs 4 and 5 of Article 92 of the Road Traffic Management and Penalty Act respectively. The "Directions for Handling Road Traffic Accidents" and the "Directions for Police Officers when Implementing Compulsory Actions on Drunk Driving Individuals" were issued by the National Police Agency of the Ministry of the Interior based on its authority.
II. Grounds for Granting Review and the Court’s Proceedings
The provision of Article 90, Paragraph 1 of the Constitutional Court Procedure Act (hereinafter referred to as "the (or this) Act") clearly states that "Except otherwise provided in this Act, this Act applies to all the pending petitions before the Constitutional Court lodged before the coming into force of this Act. Notwithstanding, the admissibility of such petitions shall be decided in accordance with the Constitutional Interpretation Procedure Act, which this Act is to replace through wholesale revision." Since these two petitions were filed on August 20, 2018, whether they are admissible shall be decided in accordance with the requirements for judges to apply for constitutional interpretation as indicated in Judicial Yuan Interpretation Nos. 371, 572, and 590, which were effective before the Act came into effect.
The petition regarding the Provision at Issue I meets the above requirements and is admissible. Moreover, since both petitions concern the same impugned laws and disputes, they must be consolidated for review. The reasoning forming the holding is as follows in Part III below.
As for the provisions in the Provision at Issue II, these provisions are different from law and are not subject matter about which a judge may file a petition for constitutional interpretation by the Judicial Yuan. The petition does not meet the requirements above and is hereby dismissed.
III. Review of the Admissible Part
1. Principles of the Review
The freedom of individuals should be safeguarded, as explicitly stated in Article 8 of the Constitution. Personal liberty is an essential prerequisite for people to enjoy their various rights to freedom under the Constitution and should be fully protected. Any measure restricting personal liberty must be derived from a law that does not violate the constitutional requirements of the void-for-vagueness doctrine or the principle of proportionality as well as follow requisite judicial procedures and due process of law (see Judicial Yuan Interpretation Nos. 384, 588, 708, 710, and 737). The requisite procedures should be determined based on the purpose, manner, extent, and impact of the restriction on personal liberty. When assessing the constitutionality of limitations on personal liberty, the appropriate standard of review should be determined accordingly (see Judicial Yuan Interpretation Nos. 384, 690, 708, 710, 799, and 812).
The freedom from bodily and mental harm, which includes the right to inviolability of bodily integrity, is protected under Article 22 of the Constitution (see Judicial Yuan Interpretation No. 689). Measures that infringe upon a person’s bodily integrity must be derived from a law that does not violate the constitutional requirements of the void-for-vagueness doctrine or the principle of proportionality.
The right to informational privacy, as protected under Article 22 of the Constitution, guarantees individuals the autonomy to determine whether or not, to whom, to what extent, at what time, and in what manner to disclose their personal information. It also affords people a right to know and have control over the use of their personal information, as well as a right to rectify any errors contained therein (see Judicial Yuan Interpretation No. 603). Although the state may legislate to mandatorily collect necessary personal information when it serves an important public interest, the purpose, scope, and procedures for obtaining and using such information must be clearly defined by law. If authorized by law, they must comply with the void-for-vagueness doctrine. The state may mandatorily collect necessary personal information if it is explicitly authorized by a statute, serves an important public interest, and is consistent with Article 23 of the Constitution. Moreover, adequate due process of law should be established based on the nature of the personal information, the manner of obtaining it, and the purpose and scope of using it, as well as having appropriate protection mechanisms applied to ensure that such information is not abused and improperly disclosed, so as not to violate the principle of legal reservation under Article 23 of the Constitution, and to comply with the constitutional intent of protecting the right to informational privacy.
2. The Provision at Issue I Imposes Significant Restrictions on Personal Liberty, Bodily Integrity, and the Right to Informational Privacy and Should Be Strictly Reviewed.
The Provision at Issue I stipulates that "Should a driver whose actions result in an accident and who refuses or is incapable of taking the test as described in Paragraph 1, the traffic police officers or personnel conducting traffic inspections under laws and regulations shall send the driver in a mandatory manner to a medical or inspection agency to collect a blood or other body fluid sample and conduct the test." According to this provision, when a driver involved in an accident refuses or is incapable of taking a breath alcohol concentration test (in violation of Article 19-2 of the Uniform Punishment Standard Forms and Rules for Handling the Matters of Violating Road Traffic Regulations, hereinafter referred to as a breathalyzer test), traffic police officers or personnel conducting traffic inspections pursuant to laws and regulations (hereinafter referred to as traffic inspection personnel) may forcibly transport the driver against their will, restrict their freedom of movement, and detain them in a medical institution for blood or other body (bodily) fluid sample collection and testing. This involves a restriction on the personal liberty of the individual being forcibly transported. Additionally, traffic police officers or traffic inspection personnel may, against the driver's will and without their consent, delegate a medical institution to collect blood or other body (bodily) fluid sample from the driver using invasive tools, thus infringing on the driver's bodily integrity. This constitutes a restriction on their bodily rights. Furthermore, the delegated inspection agency may, without the individual's consent, test the collected blood or other body (bodily) fluid samples to detect alcohol concentration or other biological information. Bodily fluids such as blood inherently contain unique and unchanging biological information, making them carriers of highly sensitive personal information. Even though the alcohol concentration in blood is present only temporarily, it must be detected by testing the blood that is the carrier of highly sensitive personal information, and it involves important personal informational privacy. Therefore, the Provision at Issue I constitutes a severe infringement on the right to informational privacy of individuals subjected to compulsory blood testing.
In summary, the Provision at Issue I imposes significant restrictions on personal liberty, bodily integrity, and the right to informational privacy guaranteed by the Constitution for those subjected to compulsory blood or other body (bodily) fluid sample testing. Consequently, this Court must conduct strict scrutiny of its constitutionality. Regarding the limitations imposed on personal liberty under Article 8 and bodily integrity under Article 22 of the Constitution, the Provision at Issue I must comply with the proportionality principle laid out in Article 23 of the Constitution. If the desired goal seeks to address a matter of significant importance to the public interest under the Constitution, and if the restriction helps achieve the goal and there are no other equally effective means that cause less harm, and if the significant importance to the public interest conforms to a proportional relationship with the restriction on fundamental rights, then the restriction is in line with the principle of proportionality under Article 23 of the Constitution. Additionally, the limitation on personal liberty should adhere to requisite judicial procedures and other due process of law. Regarding the restrictions of the Provision at Issue I in regard to the right to informational privacy, based on the principle of legal reservation under Article 23 of the Constitution, the purpose, scope, and procedures for obtaining and using personal information must have clear provisions in law or explicit authorization by law. Given that the Provision at Issue I pertains to information such as alcohol concentration derived from blood samples, an important carrier of highly sensitive personal information, and the blood alcohol concentration detection by mandatory testing can also be critical evidence of a crime, appropriate protection mechanisms to ensure that such information is not abused or improperly disclosed are necessary in order to comply with the constitutional intent of protecting the right to informational privacy.
3. The Legislative Purpose of the Provision at Issue I is to Pursue a Particularly Significant Public Interest under the Constitution, and the Manners Adopted, Except for the Collection and Testing of "Other Body (Bodily) Fluid Sample" Part, Are Suitable for Achieving the Legislative Purpose; Within the Necessary and Reasonable Scope of Determining the Need for Testing the Alcohol Concentration in the Driver's Body, It is the Least Invasive and Indispensable Means for Achieving the Legislative Purpose; Within This Scope, It Also Meets the Requirement of Proportionality and Does Not Violate the Principle of Proportionality of Article 23 of the Constitution; Other Parts, However, Contradict the Principle of Proportionality and Violate the Intention of Articles 8 and 22 of the Constitution to Protect Personal Liberty and Bodily Integrity.
Given the significant harm that drunk driving poses to road safety and the safety of road users' lives and bodies, legislators have adopted administrative and criminal penalties for drunk driving violations. In addition to specifying various administrative penalties for drunk driving violations in Article 35 of the Road Traffic Management and Penalty Act, severe drunk driving behavior is subject to criminal penalties under Article 185-3 of the Criminal Code. The establishment of these penalties aims to prevent drunk driving behavior, effectively maintain traffic order, and ensure traffic safety, pursuing particularly significant public interests under the Constitution. To determine whether a driver was drunk driving, it is necessary to use breath or blood alcohol concentration tests as evidence. Therefore, the legislative intent of the Provision at Issue I was to allow traffic enforcement officers to forcibly collect evidence even when a driver involved in an accident refuses to undergo a breathalyzer test or cannot take one due to unconsciousness, coma, or other conditions (refer to the Executive Yuan's general explanation of the draft amendment on partial articles of the Road Traffic Management and Penalty Act submitted to the Legislative Yuan on December 7, 1999, found in the Legislative Yuan Gazette Vol. 89, No. 74, Legislative Council Session Record, p. 29) so as to promptly obtain evidence that the driver involved in the accident may have been driving under the influence of alcohol (Letter Nei-Shou-Jing-Zih No. 1080873102 dated October 15, 2019, of the Ministry of the Interior, and Letter Jiao-Lu-Zih No. 1080031855 dated May 1, 2020, of the Ministry of Transportation and Communications, to the Judicial Yuan), and to make relevant authorities investigate the administrative liability or criminal liability of drunk driving behavior according to the law. The ultimate aim is to prevent drunk driving, maintain traffic order, and ensure the safety of road users' lives, bodies, and property, thus pursuing particularly significant public interests under the Constitution.
To achieve the aforementioned purposes, first, the part of the Provision at Issue I concerning the compulsory collection and testing of blood stipulates that if a driver involved in an accident has not taken the breathalyzer test, including cases where the driver refuses or is unable to undergo the test due to unconsciousness or coma, traffic enforcement officers are authorized to forcibly transport the driver to a designated medical institution for blood collection using invasive tools to detect the blood alcohol concentration. This is to determine whether the driver was drunk driving. Since breath and blood alcohol concentration tests are two major scientific methods for testing drunk driving behavior, the compulsory blood collection and testing in the Provision at Issue I can effectively substitute for the breathalyzer test to obtain the alcohol concentration in the driver's body, thus determining whether there was illegal drunk driving. Within this scope, the Provision at Issue I indeed helps to achieve its legislative purpose. In terms of the principles of necessity and proportionality, the only way other than the breathalyzer test to determine whether a driver is drunk driving is basically by means of a blood alcohol concentration test, which can only be carried out with the cooperation of the subject. Therefore, for drivers involved in an accident who refuse to cooperate with the breathalyzer test or cannot undergo it due to unconsciousness or coma, if, based on the objective circumstances of the accident or the external condition of the driver (such as whether there is an odor of alcohol), traffic enforcement officers have reasonable grounds to believe that the accident was caused by drunk driving and there is an urgent need to preserve evidence of drunk driving, then within this scope, forcibly administering a blood alcohol concentration test is necessary and indispensable. Balancing the maintenance of particularly significant public interests under the Constitution with the constitutional protections of personal liberty and bodily integrity for the driver involved in the accident, it cannot be said that this balance is disproportionate. Within this scope, the Provision at Issue I does not violate the principle of proportionality of Article 23 of the Constitution.
Conversely, beyond the aforementioned scope, drivers may cause accidents for various reasons, such as fatigue, distraction, negligence, avoiding obstacles, sudden vehicle malfunction, or unfamiliar road conditions, not necessarily due to drunk driving. Therefore, forcibly transporting a driver for blood alcohol concentration testing solely because the driver caused an accident and refused to cooperate with the breathalyzer test or was incapable of taking the test due to unconsciousness or coma cannot be justified in all cases. Therefore, in accident incidents objectively lacking the rationality and necessity to compel testing of the driver's internal alcohol concentration, the Provision at Issue I cannot be considered necessary and indispensable means to achieve the legislative purpose of preventing drunk driving and ensuring traffic and road user safety. Thus, it violates the requirement of the principle of proportionality under Article 23 of the Constitution.
Secondly, regarding the portion of the Provision at Issue I concerning the "other body fluid sample and conduct the test", it is noted that the Provision at Issue I is predicated on the premise that the driver involved in an accident refuses or fails to undergo the test prescribed under Article 35, Paragraph 1 of the Road Traffic Management and Penalty Act, thereby justifying the compulsory sampling and testing of blood and other specimens. Under the current legal framework, the legal basis for traffic police officers to conduct the alcohol concentration test as prescribed in Article 35, Paragraph 1 of the Road Traffic Management and Penalty Act is found in Article 8, Paragraph 1, Subparagraph 3 of the Police Power Exercise Act. This provision allows police officers to stop any form of transportation that poses a hazard or is likely to pose a hazard according to objective and reasonable judgment. It also allows police officers to require the driver to take a breathalyzer test. The procedures and methods for conducting such tests are detailed in Article 19-2, Paragraph 1 of the Uniform Punishment Standard Forms and Rules for Handling the Matters of Violating Road Traffic Regulations. According to this, "the test as described in Paragraph 1(of Article 35 of the Road Traffic Management and Penalty Act)" in the Provision at Issue I refers solely to the alcohol concentration test, which in practice refers to the breathalyzer test that police can conduct immediately on the spot after stopping a transportation. It does not include other drug tests (such as urinalysis drug tests). In addition, under current laws, the determination of drunk driving in our country is solely based on the alcohol concentration in the driver's breath or blood (see Article 114 of the Regulations Governing Road Traffic Safety and Article 185-3, Paragraph 1, Subparagraph 1 of the Criminal Code), even though it is technically possible to detect alcohol from specimens other than blood (such as urine or other bodily tissues), and such findings cannot be used to determine drunk driving and are not admissible as evidence for drunk driving offenses. As a result, the portion of the Provision at Issue I that authorizes the sampling and testing of specimens other than blood not only exceeds the driver's obligation to cooperate with the alcohol concentration test administered by the police, but it is also not an appropriate means for effectively obtaining the internal alcohol concentration of the driver involved in an accident. In this respect, the measures adopted in this portion of the Provision at Issue I do not contribute to the realization of its legislative purpose, and they are not indispensable means with the least infringement. Furthermore, the regulation's infringement on the bodily integrity of the driver involved in the accident is clearly excessive and disproportionate, and it is in evident violation of the principle of proportionality as required by Article 23 of the Constitution.
Above all, the legislative purpose of the Provision at Issue I is of particularly significant public interest under the Constitution. Except for the part concerning "other body fluid sample and conduct the test", the means adopted are also suitable for achieving the legislative objective. Within the scope where the rationality and necessity to test the driver's internal alcohol concentration objectively exist, it is the indispensable means with the least infringement for achieving the legislative purpose. Thus, it does not violate the principle of proportionality of Article 23 of the Constitution. However, other parts of the Provision at Issue I contradict the principle of proportionality and violate the constitutional intentions to protect personal liberty and bodily integrity under Articles 8 and 22 of the Constitution.
4. The Provision at Issue I Contravenes the Requirement for Due Process of Law for Restricting Personal Liberty, Bodily Integrity, and the Right to Informational Privacy. It Violates the Constitutional Intentions to Protect Personal Liberty, Bodily Integrity, and the Right to Information Privacy under Articles 8 and 22 of the Constitution.
The Provision at Issue I authorizes traffic enforcement personnel and commissioned medical and inspection institutions to forcibly collect and test the blood alcohol concentration of drivers involved in accidents. This is conducted in a manner that restricts personal liberty and invades the body, and the result of the test is considered to be evidence for punishing drunk driving behavior. This constitutes a coercive evidence collection measure implemented by a public authority, which is similar in nature and content to body searches and physical examinations in criminal proceedings (refer to Articles 122 and 205-1 of the Code of Criminal Procedure). Such coercive evidence collection measures not only significantly restrict the personal liberty and bodily integrity of those from whom evidence is taken but also infringe on their right to informational privacy. Therefore, these measures should be implemented in accordance with the necessary due process of law. The necessary procedures to be followed should depend on factors such as the purpose, function, and impact of the coercive evidence collection under the Provision at Issue I.
The primary purpose of the coercive evidence collection under the Provision at Issue I is to determine whether the driver involved in an accident has engaged in illegal drunk driving. Under the current system, the legislature employs both administrative penalties and criminal sanctions for illegal drunk driving, with no essential difference in the nature of the two punishments; the type of punishment varies only according to the standards chosen by the legislature. The determination of drunk driving is based on objective alcohol concentration levels. Administrative penalties are imposed when the breath alcohol concentration reaches 0.15 mg per liter or when the blood alcohol concentration reaches 0.03% (refer to Article 114 of the Regulations Governing Road Traffic Safety and Article 35 of the Road Traffic Management and Penalty Act). Criminal sanctions are imposed when the breath alcohol concentration reaches 0.25 mg per liter or when the blood alcohol concentration reaches 0.05% (refer to Article 185-3, Paragraph 1, Subparagraph 1 of the Criminal Code). From this, whether a driver’s drunk driving behavior is subject to administrative or criminal punishment must be based on the driver's internal alcohol concentration obtained from breath or blood alcohol concentration tests as the primary evidence. Therefore, the blood alcohol concentration obtained forcibly from a driver under the Provision at Issue I may become evidence for punishing drunk driving offenses. Consequently, the standard of due process of law that should accompany the Provision at Issue I should be equivalent to that required in criminal proceedings for obtaining evidence of crimes. If not, the requirements of due process of law for obtaining criminal evidence could be circumvented or waived through the Provision at Issue I, effectively depriving defendants or criminal suspects of drunk driving offenses of the relevant criminal due process protections they should otherwise enjoy.
However, the Provision at Issue I only stipulates that if a driver whose actions result in an accident and who refuses or is incapable of taking a breath alcohol test, traffic police officers or traffic inspection personnel shall send the driver in a mandatory manner to a medical or inspection agency to collect a blood or other body fluid sample and conduct the test, regardless of whether the situation is urgent. There is no pre-review or consent procedure by a judge or public prosecutor, nor any subsequent reporting or supervisory procedure by the concerned public prosecutor or court. Moreover, there is no provision for any remedial mechanism for those subjected to forced blood alcohol testing. In other words, from the content of the Provision at Issue I, neither judicial procedures nor due process of law are observed. Compared with the related judicial procedures required for implementing body searches or physical examinations in criminal proceedings, the Provision at Issue I clearly violates the requirement for due process of law under the Constitution. Additionally, the Provision at Issue I authorizes "personnel conducting traffic inspections pursuant to laws and regulations", who neither possess police authority nor who can carry out the tasks and functions of judicial police officers, to transport drivers involved in accidents to commissioned medical institutions for forced blood sampling and testing. In this regard, it also violates the requirement for due process of law. Therefore, the Provision at Issue I lacks the necessary judicial procedures and due process of law, thus violating the constitutional intentions to protect personal liberty, bodily integrity, and the right to information privacy under Articles 8 and 22 of the Constitution.
5. As for the Limitation on the Right to Informational Privacy, the Provision at Issue I does not Comply with the Principle of Legal Reservation and Violates the Constitutional Intention to Protect the Right to Informational Privacy under Article 22 of the Constitution.
The Provision at Issue I imposes a significant limitation on the right to information privacy of individuals subjected to compulsory blood alcohol concentration testing. However, essential matters, such as the target and scope of sample collection and testing, the scope and limitation of the use of test results, and conditions for the storage and destruction of samples, have not been clearly defined by law or any regulation authorized by law. This lack of clarity in restricting the right to information privacy fails to meet the requirements of the principle of legal reservation as stipulated in Article 23 of the Constitution. Consequently, the Provision at Issue I also violates the constitutional intention to protect the right to informational privacy under Article 22 of the Constitution.
6. Conclusion of the Review
In summary, the Provision at Issue I within the scope where the rationality and necessity to test the internal alcohol concentration of a driver whose actions have resulted in an accident objectively exist, the forced implementation of blood alcohol testing on the driver does not violate the principle of proportionality under Article 23 of the Constitution regarding the infringement on personal liberty under Article 8 nor the requirement to protect bodily integrity under Article 22 of the Constitution. However, other parts of the Provision at Issue I contravene the principle of proportionality under Article 23 of the Constitution, violating the constitutional intention to protect personal liberty under Article 8 and to protect bodily integrity under Article 22 of the Constitution. The Provision at Issue I also does not conform to the requirement of due process of law under the Constitution, thus violating the constitutional intention of protecting personal liberty under Article 8 and bodily integrity and the right to informational privacy under Article 22 of the Constitution. Furthermore, regarding the part of the Provision at Issue I that involves limitations on the right to informational privacy, it does not comply with the requirement of the principle of legal reservation as stipulated in Article 23 of the Constitution, thereby violating the constitutional intention of protecting the right to informational privacy under Article 22 of the Constitution. The Provision at Issue I shall cease to be effective no later than two years from the announcement of this Judgment. In addition, considering that the Provision at Issue I pertains to procedural rules for evidence collection, the current regulation shall apply for relevant proceedings that are still underway before the announcement of this Judgment.
Within the two-year grace period, the competent authority shall amend the disputed provision as appropriate. Within the said grace period or before the amendment, in cases that a driver whose actions result in an accident and who refuses or is incapable of taking the breath alcohol concentration test, if traffic police officers deem it necessary and rational to conduct a blood alcohol concentration test to detect the driver's body alcohol concentration, prior written permission from the public prosecutor is required for the compulsory evidence collection. Where the situation is urgent, the traffic police officers may send the driver to a medical agency for a blood test mandatorily and report the case to the public prosecutor for permission within 24 hours of the enforcement. If deemed impermissible, the public prosecutor may revoke the action within three days. The driver who is subjected to the said measure may petition the concerned court for withdrawal within ten days of the testing.