Driving under the influence of alcohol is a serious and all-too-common offence, not just in Malaysia but in many other countries too. It causes many deaths every year, despite the government’s work with various agencies, and despite clear public support for stricter laws to prevent it. The law was reviewed and changed in 2020, when the Road Traffic (Amendment) Act of 2020 was introduced.
Since then, drink drivers who have been arrested face harsher penalties than ever before, which can have serious consequences for them. Ignorance of the new law is no defence; drivers must know and abide by the legal alcohol limits.
In this article we explain the new law, blood alcohol limits and the new penalties that the Road Traffic (Amendment) Act sets out.
Drink driving – the legal provisions
- Causing death to anyone whilst driving a vehicle on a road or public place whilst under the influence of alcohol or drugs, to the extent that the accused is unable to take proper control of the vehicle, or that the levels of alcohol in their blood, breath or urine exceed the prescribed limit, is guilty of an offence—section 44(1).
- Causing injury to someone whilst driving a vehicle on a road or public place whilst under the influence of alcohol to such a degree that they don’t have full control of their vehicle, or to the degree that the alcohol levels in their blood, breath or urine exceed the prescribed limit. It is not necessary for the prosecution to prove the drivers blood alcohol levels to show that the driver was incapable of fully controlling the vehicle, though it is helpful if they can. Other relevant evidence can instead be offered, such as the inability to walk in a straight line, or slurred speech—section 44(1A).
- Driving or attempting to drive under the influence – an offence has been committed if someone drives or tries to drive a motor vehicle in a public place/road whilst their blood alcohol levels are above the legal limits. It is not necessary for anyone to have been injured or killed for this offence. The only question here is whether the person’s alcohol levels are above the prescribed amount. Even if the person seems to be able to control the vehicle, the offence can still have occurred—section 45A.
- Being in charge of a vehicle whilst unfit and unable to control it due to intoxication – note here that the person does not even need to be driving the vehicle. If, however, they can prove that there was never any chance of them driving the vehicle whilst in an unfit state, and they didn’t in fact drive it, then they won’t be guilty of the offence. For example, someone who drives to a car park whilst completely sober, then drinks alcohol but gives the keys to someone else, and tells them to keep the keys until they’re sober again, will have a defence to this offence—section 45.
Legal alcohol limits in Malaysia
- Breath: 22 microgrammes (mcg) of alcohol in 100 millilitres (ml) of breath
- Blood: 50 milligrammes of alcohol in 100ml of blood
- Urine: 67 milligrammes of alcohol in 100ml of urine.
If requested, do you have to give a sample?
If a police officer thinks you have committed a drink driving offence, and requests you give a sample of blood, breath or urine, then yes you must comply. There are specific conditions in section 45C about where samples can be requested, and who can request them, such as the rank of the requesting officer.
If you refuse to provide a sample without a reasonable excuse when asked, then section 45C states you are guilty of an offence. You can be imprisoned for up to two years and given a fine of anything from RM10,000 up to RM30,000. You will also be banned from holding a driving licence for at least two years.
If you are subsequently convicted again, you can be imprisoned for up to five years and fined between RM20,000 and RM50,000. You’ll be banned from having a driver’s licence for at least 5 years.
Penalties for drink driving offences
Since the law was amended in 2020, the penalties for section 44 and 45 drink driving offences are stricter, as follows:
- Penalties for causing death—section 44(1): anyone who drives under the influence and causes the death of someone can be sentenced to between 10 and 15 years in prison, and fined anywhere from RM50,000 to RM100,000. They will also be banned from having a driver’s licence for at least 10 years.
- Penalties for causing injury —section 44(1A): someone who injures a person whilst driving under the influence can be sentenced to between 7 and 10 years, and fined between RM30,000 and RM50,000. They will be disqualified from holding a licence for at least 7 years.
- Penalties for exceeding the prescribed limit—section 45A: if someone is guilty of driving or trying to drive whilst intoxicated beyond the legal limit, they can be jailed for up to 2 years, and fined between RM10,000 and RM30,000. They will also be banned from holding a licence for a minimum of 2 years.
- Penalties for being drunk in charge of a vehicle—section 45: someone guilty of this offence will be fined between RM1,000 and RM5,000 and may also be jailed for up to 2 years. They will have their licence revoked for at least 2 years.
If you have existing previous convictions
As you might expect, anyone with previous convictions for section 44 or 45 offences will face more severe punishment:
- Penalties for causing death—section 44(1): Anyone with a second or subsequent conviction faces between 15 and 20 years in prison, a fine of between RM100,000 and RM150,000, and disqualification from driving for 20 years.
- Penalties for causing injury —section 44(1A): Anyone with a second or subsequent conviction faces between 10 and 15 years imprisonment, a fine of RM50,000 – RM100,000, and disqualification from driving for 10 years.
- Penalties for exceeding the prescribed limit—section 45A: Anyone with a second or subsequent conviction faces imprisonment for up to 5 years and a fine of between RM20,000 – RM50,000.
- Penalties for being drunk in charge of a vehicle—section 45: Anyone with a second or subsequent conviction faces up to 5 years in prison and a fine of between RM20,000 and RM50,000. They’ll be disqualified from driving for at least 5 years.
Can you drive whilst your case is being investigated?
No—once you are charged with drink driving, your licence is taken and suspended until your case is heard in court, so you cannot drive. If you are ultimately convicted, your licence will be endorsed with the details of the conviction.
When sentencing, what does the court consider?
The court will use its discretion in sentencing for section 44 and 45 offences, as well as following the Act. They will use this discretion when they have to decide on imposing the minimum or maximum sentence.
The factors a court considers when sentencing include:
- Are there any mitigating factors?
- Are there any aggravating factors involved, for instance the injury or death of a person or people?
- Are you a first-time offender?
- Were you driving erratically, or were you (for example) stopped at a roadblock?
- How severe were the injuries caused?
- How much over the prescribed blood alcohol level were you?
You will need to consult a criminal lawyer with drink drive case experience, so you can understand your rights and the process you will have to go through. Drink driving charges are always very serious, and a conviction can be life changing, so seek legal advice as soon as you can.