Note: 
This summary constitutes no part of the Judgment but is prepared by the clerks of the Taiwan Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 

Headnotes 

In this Judgment, the Taiwan Constitutional Court (hereinafter, the "TCC") rendered Article 35, Paragraph 5 of the Road Traffic Management and Penalty Act (2013) unconstitutional. The provision stipulated that where a driver involved in a traffic accident refuses or is incapable of taking the breathalyzer test, the traffic police officers or traffic inspectors shall, against the will of the driver, have the driver admitted to a medical or inspection agency for a blood test or test of other bodily fluid. The TCC applied strict scrutiny in this case, with consideration that the provision involved major constraints on physical liberty, freedom from bodily and mental harm, and the protection of personal data. The TCC further ruled that the provision violates the principle of proportionality. The TCC also ruled that the provision does not meet the requirements of due process and the Gesetzesvorbehalt principle. 

Background Note

The petitioner of this case is a judge from the Criminal Division of the Taiwan Hualien District Court. In hearing the cases concerning offenses against public safety, the petitioner believed that the pertaining Article 35, Paragraph 5 of the Road Traffic Management and Penalty Act (2013) has violated the Constitution, therefore suspended the proceeding of the cases and lodged a petition with the TCC concerning the constitutionality of the disputed provision.

On February 25, 2022, the TCC announced this Judgment, which became the first judgment under the new Constitutional Court Procedure Act. 
 

Summary of the Judgment 

Holding

1. Article 35, Paragraph 5 of the Road Traffic Management and Penalty Act (the 2013 version, hereinafter "the disputed provision") stipulates that  "Should a driver result in an accident and refuse 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 (bodily) fluid sample and conduct the test."^[1] The disputed provision violates the driver's physical liberty, the protection of personal data, and freedom from bodily and mental damage guaranteed by Articles 8 and 22 of the Constitution, therefore shall cease to be effective no later than two years from the announcement of this Judgment. In addition, the current regulation shall apply for relevant proceedings that are still underway before the announcement of this Judgment. 
    
2. 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 the case that traffic police officers deemed necessary and rational to take the driver's blood sample mandatorily for body alcohol content (BAC) data, prior written permission from the prosecutor is required. 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 prosecutor for permission within 24 hours of the enforcement. If deemed impermissible, the prosecutor may revoke the action within three days. The driver who is subjected to said measure may appeal to the court for revocation within ten days of the testing.

Reasoning

1. The disputed provision permits traffic police officers or personnel conducting traffic inspections pursuant to laws and regulations (hereinafter “traffic inspector”) to violate the will of the drivers and send them to a medical or inspection agency to collect a blood or other bodily fluid sample for testing when the driver involved in a traffic accident (hereinafter “the driver”) refuses to or is incapable of taking the breathalyzer test. In this sense, the disputed provision involves the constraint on the physical liberty of the drivers. As the entrusted medical agency may be authorized to collect blood samples and other specimens through non-consensual, invasive methods to detect blood alcohol content (hereinafter “BAC”) and other biochemical data of the driver's body, it also involves the violation of the drivers' body, consequently constraining their freedom from bodily and mental damage. Furthermore, although a person's BAC data is temporary, it has to be acquired through blood, which is a carrier of highly sensitive biological information that is inalterable and specific to each person. Therefore, the disputed provision also imposes severe infringement upon the drivers' personal data.【19】 
   
   Given the abovementioned reasons, strict scrutiny shall apply in determining the constitutionality of the disputed provision. That is to say, in the part where the drivers’ physical liberty and freedom from bodily and mental harm is constrained by the disputed provision, it shall conform to the requirements of the principle of proportionality inscribed in Article 23 of the Constitution; in the part where the drivers' physical liberty is constrained by the disputed provision, it shall also follow the necessary judicial procedure and due process; furthermore, in the part where the protection of the drivers' personal data is violated, important matters concerning the acquirement and usage of such personal data shall be stipulated by law or law-authorized regulation so that it conforms to the Gesetzesvorbehalt principle under Article 23 of the Constitution. Aside from the above, as blood is an important carrier of highly sensitive personal biological data, and as its BAC data may be used as criminal evidence, certain protective measures shall also be stipulated so that said information cannot be abused or leaked.【20】
    
2. The disputed provision is for preventing people from driving under the influence (DUI), so that traffic order and traffic safety may be maintained effectively. This is a compelling public interest under the Constitution. 【22】
   
   In terms of the measure to achieve the said purpose, first of all, given that the breathalyzer test and blood test for BAC are the only two scientific options in determining DUI, the disputed provision authorizing compulsory blood test is an alternative that may achieve said purpose effectively when the driver refuses to or is incapable of taking the breathalyzer test. In terms of the necessity of the measure, in the case that the driver refuses to or is incapable of taking the breathalyzer test, if it is deemed necessary and urgent to perpetuate evidence of DUI, based on the objective situation or the state that the driver is in, then said measure can be seen as the sole necessary alternative. Said measure is also equitable in balancing both the compelling public interest mentioned above and the driver's right to physical liberty and freedom from bodily and mental harm. Therefore, within the confine that it is necessary and urgent, the measure stipulated by the disputed provision is in accord with the principle of proportionality under Article 23 of the Constitution. On the contrary, in the case that the traffic accident happened due to reasons other than DUI, sending the involved driver for a compulsory BAC blood test even though it lacks objective necessity and rationality, cannot be seen as the less restrictive alternative in achieving the purpose of preventing DUI and promoting the safety of pedestrians. Within this confine, the disputed provision violates the principle of proportionality prescribed by the Constitution.【23, 24】
   
   Secondly, in terms of the part where “other body fluid sample” may be collected under the disputed provision, in practice, and under current law, the detection and determination of DUI are achieved by acquiring BAC data through a breathalyzer or blood test. The disputed provision authorizing the collection of “other body fluid sample” from the driver is excessive and not an effective measure to acquire BAC data, therefore not helpful in achieving the legislative purpose of the disputed provision. Consequently, this part of the disputed provision is a disproportionate invasion of the driver's freedom from bodily and mental harm and a blatant violation of the principle of proportionality. 【25】
   
   In conclusion, the legislative purpose of the disputed provision is of compelling public interest under the Constitution. Except for the part where “other body fluid samples” may be collected, the measure of the disputed provision is effective in achieving its purpose. Within the confine that it is objectively necessary and rational to examine the driver's BAC, said measure (compulsory blood test) is the less restrictive alternative in achieving its purpose. The stated measure is also equitable within this confine, hence conforming to the principle of proportionality under Article 23 of the Constitution. As for the parts (of the disputed provision) exceeding said confine, they are in conflict with the principle of proportionality, consequently violating the protection of physical liberty and freedom from bodily and mental harm enshrined in Articles 8 and 22 of the Constitution. 【26】
    
3. In terms of the requirement of due process, as the disputed provision authorizes blood samples of the driver to be mandatorily taken to collect evidence for DUI, it is a kind of compulsory evidence collection measure enforced by the public authority, with its nature and content no different from a search of the person and body examination in criminal procedures.^[2] Said measure imposes a major restriction on the driver's physical liberty, freedom from bodily and mental harm, and the protection of personal data. Therefore its enforcement shall meet the requirement of due process, with its necessary procedure determined by its purpose, effect, and influence. 【28】
   
   The purpose of said measure is to determine whether the driver is driving under the influence (DUI). Under current regulation, DUI is punishable under both administrative law and criminal law, in which both require BAC from breathalyzer or blood samples as major evidence. As BAC mandatorily taken may also be criminal evidence for DUI, the disputed provision shall meet the same requirement of due process as the perpetuation of evidence in criminal procedure. If not so, the disputed provision may be abused to avoid due process in the criminal procedure for DUI, consequently depriving DUI suspects or defendants of their relevant rights.【29】 
   
   The disputed provision permitted the traffic police officers or traffic inspectors to mandatorily send the drivers who refuse or are incapable of taking the breathalyzer for blood testing or specimen collection, without distinguishing the urgency of each case. Furthermore, said process does not require a prior examination or permission from a judge or a prosecutor, neither does it require ex post facto supervision from the prosecutor or the court, nor does it provide a remedy for the drivers subjected to such measure. In this sense, compared to the due process required for the search of the person and body examination in criminal procedure, the disputed provision blatantly violates the requirement of due process prescribed by the Constitution. Aside from this, the disputed provision also violates due process in authorizing traffic inspectors, who do not have the same competency and function as judicial police officers, to enforce such measures. Therefore, the disputed provision fails to meet the requirement of due process.【30】
4. The disputed provision imposes a major restriction on the protection of personal data of the drivers who are mandatorily tested for their BAC. However, important matters regarding the samples such as limitation of usage, are not regulated expressly by law or regulations specifically authorized by law. For this reason, the disputed provision does not meet the requirement of the Gesetzesvorbehalt principle, consequently violating the drivers' right to the protection of personal data guaranteed by Article 22 of the Constitution. 【31, 32】
    

[1]Translator’s Note: For the reason the official English version of The Road Traffic Management and Penalty Act (2013) is unavailable, the cited text is translated by the translator of this Judgment based on the official English version of the Act (2022). This is just for reference and shall not be construed as part of the regulation. The 2013 version of the disputed provision was later amended into Article 35, Paragraph 6 of the same Act in 2019 with only slight changes in its wording. The latest version of this Article is the 2022 version, in which the disputed provision is unchanged. 
[2]See Articles 122 and 205-1 of the Code of Criminal Procedure.