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Better drunk driving detection with new motor traffic regulations

08 Jul 2021

  • Forensic medical scientists, academics, researchers, physicians, consultant JMOs call for Motor Traffic Act amendments

By Ruwan Laknath Jayakody   A group of local forensic medical scientists have urged the amendment of regulations related to assessing driving under the influence (DUI), including drunk driving, to allow for the legally validated use of new methods. The group, which includes academics and researchers, physicians, and consultant judicial medical officers (JMOs), has called for the urgent amendment of the Motor Traffic Act, No. 22 of 1973 as amended and other motor traffic law based regulations related to assessing driving under the influence (DUI), including drunk driving, to allow for the legally validated use of new methods that are available for the medico-legal assessment of alcohol consumption. This proposal was made by S. Kodikara (attached to the Peradeniya University as a Professor of Forensic Medicine), A. Izzath (attached to Australia's Victorian Institute of Forensic Medicine as a Fellow), S. Wijerathna (Consultant JMO at the Kandy National Teaching Hospital), P. Jayasooriya (Consultant JMO at the Mahiyangana Base Hospital), and M. Kudagama (Consultant JMO at the Ratnapura Teaching Hospital) in a systematic review article titled “Novel tools for the assessment of drunken driving: are they legal within the Sri Lankan jurisdiction?” which was published on 1 July 2021 in the Sri Lankan Journal of Medicine's Volume 30 Issue One. With regard to the existing legal regime in Sri Lanka concerning the use of breathalysers to assess the consumption of alcohol or a drug, Section 151(1) of the Motor Traffic Act prohibits driving a motor vehicle under the influence of liquor or a drug, regardless of the concentration of the alcohol or drug in the blood. Section 151(1)(1B) states that any injury or death caused as a result of driving after the consumption of liquor or a drug constitutes an offence. Section 151(1)(1C)(a) allows for a Police officer who suspects that a driver has consumed such, to submit such an individual to an immediate breath test, or examination by a Government medical officer, to obtain a report from the latter.  The forensic physician's opinion, as per Section 151(1)(1C)(d) is sufficient to bring a charge, prosecute, or convict a driver who has consumed alcohol or a drug. The Police are also empowered under Section 151(1)(1cc) to arrest such a person sans a warrant. The penalty for driving under the influence as set out in Section 216 includes a maximum fine of Rs. 7,500; for certain offences, a maximum fine of Rs. 50,000 and/or a maximum term of imprisonment of three months; for certain offences, a maximum of six months in prison or 10 years or five years and the suspension of the driving license for a maximum of one year; or for certain offences, the cancellation of the license. Regulations pertaining to the mode and manner in which the breath test for alcohol is administered is prescribed in Section 151(1)(1D). According to the gazetted Motor Traffic (Alcohol and Drugs) Regulations of 1979, which specify as to how the breath test should be carried out, the breath test for alcohol should be conducted by a Police officer through the use of a device approved for the purpose by the Inspector General of Police (IGP). With regard to the existing law in Sri Lanka concerning the use of saliva to assess whether a driver is under the influence of liquor, in the case of Nalinda Kumara vs. Officer-In-Charge of Traffic Police, Kandy, and Another, the Supreme Court (a bench comprising then-Justice Shirani Bandaranayake, and President’s Counsel and Justice Saleem Marsoof and Justice Andrew Somawansa, with Justice Bandaranayake penning the opinion) held that the fact that the person thus charged had consumed alcohol to the limit of 80 milligrams per decilitre (mg/dL) of blood, could only be established by carrying out the breathalyser test or by carrying out a blood test of the person. As Kodikara et al., explain, the Motor Traffic Act is silent on the use of body fluids other than blood, including saliva, for the assessment of being under the influence while driving, specifically the assessment of the blood alcohol level using saliva. In the event a Police officer submits a driver, suspected of having consumed alcohol or a drug, to a State medical officer, it is the duty of the relevant forensic physician to assist the justice system through the conduct of a clinical forensic examination by expressing an opinion on the fact of whether or not the driver in question is under the influence. This examination, however, is, as pointed out by Kodikara et al., “highly subjective”. This is where new testing methods that have scientific authentication and acceptance come in handy. However, Kodikara et al., explain that since these new methods are not validated under the existing legal framework in Sri Lanka, the employment of such methods could be challenged in court.  Some of these new testing tools include the digital breathalyser (to detect low, moderate, and high levels of alcohol intake as per the “Cellular photo digital breathalyser for monitoring alcohol use: a pilot study” by G.E. Skipper, N. Thon, R.L. DuPont, M.D. Campbell, W. Weinmann, and F.M. Wurst) and the saliva alcohol test (SAT) by means of a quantitative ethanol detector (QED).  The SAT strip – which contains, according to Kodikara et al., tetramethylbenzidine, alcohol oxidase, peroxidase and proteins, and is, as per M.R. Thokala, S.P.R. Dorankula, K. Muddana and S.R. Velidandla's “Alcohol saliva strip test”, based on the high specificity of alcohol oxidase for ethyl alcohol in the presence of peroxidase and an enzyme substrate such as tetramethylbenzidine – which uses a saliva sample can be administered on the spot and provides quantitative results within less than five minutes, and as mentioned by Thokala et al., shows the change of colour when the ethyl alcohol concentration is more than 0.02% in less than 20 seconds (due to the presence of ethyl alcohol, the colour change occurs in tetramethylbenzidine, which in turn quantifies the level of alcohol).  The digital breathalyser has been approved and certified by the European Conformity, the UK's Home Office, the US Food and Drug Agency (FDA), and the Department of Transportation (DOT), while according to the product details of the QED Alcohol Saliva Test Kit, it has been recognised by the US Clinical Laboratories Improvement Amendments (CLIA), the FDA, and the DOT, and also by Health Canada. Neither the use of the digital breathalyser, nor the use of the SAT by means of QED, for this purpose, has been approved by the IGP in Sri Lanka. Therefore, Kodikara et al., note that in Sri Lanka, any opinion framed by a forensic physician in a case of driving under the influence of liquor, through the means of the use of a digital breathalyser, is contrary to the existing law, despite its accurate end results and authenticity. The same, they mention, is the case with the use of the SAT by means of QED for the same purpose, despite its wide availability and widespread use in both general and teaching hospitals of Sri Lanka to assess driving after drinking.  Hence, it is reiterated that since there is no legal validation for the use of either tool, using such and framing opinions based on such, have no legal validity, and therefore, could be challenged in a court.


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