Drink Driving in Malaysia

Drink driving remains a cause of serious concern in Malaysia. Every year many people lose their lives as a result of drunk drivers. Last year, the government engaged in many discussions with various agencies and conducted several surveys that all indicated tremendous support for stricter laws around drink driving. These results led to a review of the law and the introduction of the Road Traffic (Amendment) Act of 2020to improve road safety. The Act came into effect on 23 October 2020.

Many people have been arrested since October under the new laws. They face even stricter penalties than before, and convictions will have significant consequences on their lives. The fact that the law is new is no excuse. All drivers must know the law and the prescribed alcohol limits.

This article discusses the new alcohol limits and the new penalties introduced by the Road Traffic (Amendment) Act.

The law on drink driving

In Malaysia, there are a few offences relating to drunk driving.

• Section 44(1)states that anyone who caused the death of any person whilst driving a vehicle on a road or public place, under the influence of intoxicating liquor or drugs to such an extent that the person is incapable of having proper control of the vehicle, or has so much alcohol in their body that the concentration of it in their breath, blood or urine exceeds the prescribed limit, shall be guilty of an offence.
• Section 44(1A) makes it an offence to cause injury to another person whilst driving a vehicle on a road or other public place under the influence of intoxicating liquor to such an extent that the person is incapable of having proper control of the vehicle, or whilst the concentration of alcohol in their breath, blood or urine exceeds the prescribed limits. To prove that the driver was incapable of having proper control over the vehicle, the prosecution need not prove the driver’s alcohol concentration, although it would be helpful. For example, other evidence that the driver was slurring or was unable to walk straight can be offered to prove that the person was incapable of properly controlling the vehicle.
• Section 45A creates an offence for driving or attempting to drive a motor vehicle or being in charge of a motor vehicle on the road, or another public place whilst the alcohol concentration in their blood, breath, or urine exceeds the prescribed limits. This is regardless of any injury or death of another person. The only test is whether the person’s alcohol levels exceed the prescribed limits. The person can be convicted even though they are seemingly capable of controlling the vehicle.
• Section 45 makes it an offence to be in charge of a motor vehicle on a road or public place whilst being unfit to drive the vehicle because they are under the influence of intoxicating liquor or drugs to the extent that they are incapable of properly controlling the vehicle. Take note that the person does not need to be driving the vehicle. If someone can prove that at the material time there was no likelihood of them driving the vehicle whilst they were unfit to do so and that they didn’t drive the vehicle between becoming unfit to drive and being arrested, they will not be found to be in charge of the vehicle for the purposes of this section. An example would be someone who drives to a parking lot whilst 100% sober, then starts drinking, but gives the car keys to someone else with the instruction to not return the keys until the person is 100% sober again. Such a person will have a defence against a charge under section 45(1).

What are the prescribed limits of alcohol?

The new prescribed limits introduced by the amendments are as follows:

• 22 microgrammes of alcohol in 100 millilitres of breath
• 50 milligrammes of alcohol in 100 millilitres of blood
• 67 milligrammes of alcohol in 100 millilitres of urine

Must you give a sample when requested to do so?

Yes, if a police officer has reasonable cause to suspect that you committed an offence involving intoxicating liquor, they may request that you provide breath, blood or urine samples for testing. Depending on which samples are requested, there are certain conditions in section 45C relating to the place where the sample may be requested and the rank of the police officer requesting it.

The amended section 45C states that if you fail to provide such samples without a reasonable excuse, you shall be guilty of an offence and sentenced to imprisonment for a period not exceeding two years and fined between RM 10,000 to RM30,000. You will be disqualified to hold a driver’s licence for a minimum of 2 years.

In the case of a second conviction, imprisonment for a period not exceeding five years and a fine between RM20,000 and RM50,000 with a licence disqualification of a minimum of 5 years.

What are the penalties for drink driving offences?

The 2020 amendments provide for much stricter penalties for section 44 and 45 offences.

Section 44 (1) – causing death penalties

A person causing the death of another person whilst driving under the influence shall, if convicted, be punished to imprisonment for at least ten years and not more than 15 years, and a fine of between RM50,000 and RM100,000. The driver shall be disqualified to hold a driver’s licence for at least ten years.

Section 44(1A) – causing injury penalties

If convicted of causing injury whilst under the influence, the punishment is a minimum of 7 years imprisonment and not more than ten years imprisonment, and a fine of at least RM30,000 and not more than RM50,000. The driver shall be disqualified to hold a driver’s licence for at least seven years.

Section 45A – exceeding the prescribed limit penalties

A person convicted of driving or attempting to drive whilst their alcohol level exceeds the prescribed limit, shall be sentenced to imprisonment for a maximum of 2 years and a fine of at least RM10,000 and not more than RM30,000. Upon conviction, the driver shall be disqualified from holding a driver’s licence for at least two years.

Section 45 – being in charge penalties

Upon conviction, the person shall be fined to at least RM1000 and not more than RM5000 and be liable to possible imprisonment for a maximum of 2 years. The driver shall be disqualified to hold a driver’s licence for at least two years.

What happens if you have previous convictions?

In all section 44 and 45 offences, you will face harsher penalties for subsequent convictions.

Section 44 (1) – causing death penalties

In the case of a second or subsequent conviction, the penalty is imprisonment for at least 15 years and not more than 20 years, and a fine of at least RM100,000 and not more than RM150,000. The driver shall be disqualified to hold a driver’s licence for 20 years.

Section 44(1A) – causing injury penalties

In the case of a second or subsequent conviction, the penalty is imprisonment of at least ten years and not more than 15 years and a fine of at least RM50,000 and not more than RM100,000. The driver shall be disqualified to hold a driver’s licence for ten years.

Section 45A – exceeding the prescribed limit penalties

In the case of a second or subsequent conviction, the penalty is imprisonment not exceeding five years and a fine of at least RM20,000 and not more than RM50,000. The driver shall be disqualified to hold a driver’s licence for at least five years.

Section 45 – being in charge penalties

In the case of a second or subsequent conviction, the penalty is a fine of at least RM5,000 and not more than RM10,000 and possible imprisonment for a maximum of 5 years. The driver shall be disqualified to hold a driver’s licence for at least five years.

Are you allowed to drive pending the outcome of your case?

No, when you are charged with a drink driving offence, the police will confiscate your licence and suspend it until your case is finalised in court. You are not allowed to drive whilst your licence is suspended.

If convicted, the details of your conviction will be endorsed on your driver’s licence.

What does the court consider when sentencing you?

The Act leaves a certain margin of discretion for sentencing a person convicted of section 44 or 45 offence. The court uses this discretion when deciding whether to impose the maximum or the minimum prescribed sentence.

The court will take various factors into account, including:

• Are you a first offender?
• The level of alcohol in your blood, breath or urine?
• Are there aggravating factors, such as injury or death of another person?
• How severe was the injury?
• Were you driving erratically, or were you stopped at a roadblock?
• Are there any mitigating factors?

Facing a charge of drink driving or any related offence is always very serious. Navigating a drink driving trial is complicated, and a conviction can change your life forever. It is essential to seek legal advice as soon as possible. A criminal lawyer with experience in drink driving cases will know your rights and guide you through the process offering advice and representation.