All You Need To Know About Malaysia’s Drunk Driving Laws

With not one but two incidents (on Sunday morning alone) of drunk drivers crashing into MCO roadblocks – most Malaysians have been unanimous in their calls for stricter drunk driving laws in Malaysia to curb similar incidents from happening in the future.

Especially when a number cases have caused the tragic deaths of innocent people – most recently, the death of 31-year old police officer Corporal Safwan Muhammad Ismail as he manned an MCO roadblock near the Kajang Selatan Toll Plaza on the Lekas Expressway in the wee hours of Sunday morning. A second incident happened in Ampang later on Sunday morning, also caused by drunk driving, but fortunately, no injuries were reported for the personnel at the roadblock or the car’s driver and passenger.

In January 2020, the then Transport Minister Anthony Loke had announced amendments of Sections 41, 44 and 45 of the road Road Transport Act 1987 for more severe penalties than that of the current Section 41(1) code. Which, if found guilty for driving under the influence (DUI), a person may be fined not less than RM5,000 to a maximum of RM20,000, and serve jail time of 2 years and not exceeding 10 years.

Image credit: Artyom Kulakov from Pexels

Calls for stricter drunk driving laws (especially in cases where innocent people are injured or killed), involved increasing jail time to a total of 20 years under the aforementioned laws, according to Bernama. Of course, since then, the government has been replaced, and COVID-19 came along. The status quo remains.

However, the recent incidents may yet bring this topic back to light, which got us thinking, leaving aside the moral and legal arguments of the subject, what are Malaysia’s DUI laws and how strict are they at present?

Firstly, when are you considered to be over the legal limit?

You are considered to be DUI if you exceed the limits as prescribed in Section 45 (G) of the road transport act.

• 35 microgrammes (μg) of alcohol in 100 millilitres of breath (measured using a breathalyzer)
• 80 milligrammes(mg) of alcohol in 100 millilitres of blood (0.08% Blood Alcohol Content - BAC); or
• 107 milligrammes (mg) of alcohol in 100 millilitres of urine.

Of course, different people reach these limits differ depending on their metabolism, physique, health levels, and type of consumed alcohol. Hence, saying that you can hold your drink, or can control your car regardless of being in access of those limits is no excuse. These numbers are set in stone.

Now that you’re over the limit, what offences are you committing?

According to AskLegal.my – once you’re in your car, you are in offence of one or more of the following laws.

Section 43

Refers to a person who drives ‘without due care and attention or without reasonable consideration for another person using the road’. Maximum punishment includes a fine of up to RM10,000 and maximum jail time of 12 months or both.

Section 44

This is the most commonly used offence because it is direct in definition and substantive. Section 44 states that you are committing an offence if you are driving (on a road or any public place), under the influence of an intoxicating substance (alcohol or drugs), such that you are incapable of properly controlling the vehicle, or, and this is the most important part – you are over the legally prescribed limits. Therefore, this section sets the precedent for when you are over the limit. Hence, regardless if you look fine – if you are over the limit, you are over the limit. Upon conviction one stands to be fined of not less than RM8,000 up to RM20,000, and minimum jail time of 3 years.

Section 45 and 45A

These give discretionary powers to the police who consider a person to be in charge of a vehicle (when intoxicated or over the prescribed limits). This means to say, even if you are drunk and decide not to drive, but sleep in the driver’s seat until you feel better, you are still in offence of 45 and 45A because you can be considered being in a position to be in charge of the vehicle. Once a police officer administers a breathalyser test to deem you are above the limit, you are in violation of 45 and 45A. However, AskLegal says, that you won’t be charged if there’s no possibility of you operating the vehicle, vis-à-vis, if you absolutely must, sleep in the passenger seat or rear seats of the car – this way, you are tecnhnically in no position to operate the vehicle.

Section 45B

This gives power to the police officer to arrest a person if:

a) the officer has reasonable cause to suspect that the proportion of alcohol in that person‘s breath, blood, or urine exceeds the prescribed limit or,

b) a person has failed to provide a specimen of breath for a breath test when required to do so in pursuance of this section and the police officer has reasonable cause to suspect that he has alcohol in his body.

Hence, the cops can still haul you in, using 45B, if you choose not to conduct the breathalyzer test. Failure to provide a breath specimen (when required) will land you a fine between RM1,000 and RM6,000 and maximum jail time of up to 12 months, and if this charge is compounded with another offence, it results in a fine of between RM1,000 and RM2,000 and a maximum jail time of up to 2 years. So choosing not to give your breath specimen, is tantamount to getting charged under Section 44, if not worse. In addition, your driving license can also be suspended or revoked indefinitely.

So how do I know if I have gone over the limit?

Well, there is no exacting rule of thumb out there since alcohol affects every single person differently. The most precise way is, of course, buying a breath tester and checking yourself before you get behind the wheel. Breath testers are not exactly very expensive, there are plenty of options under RM100, but you would still be taking a risk if you get stopped, and the police officer’s breath tester reads differently. In addition, certain drinks affect us differently over time, so while you might have been okay when starting your drive, you might not be 10 minutes down the line.

But, what if I just had one drink?

Well, I suppose most people who drink alcohol would have heard this one before. According to BACtrack, conventional wisdom estimates that your BAC levels will remain within safe limits if you only consume one standard drink per hour. As defined by the National Institute on Alcohol Abuse and Alcoholism (NIAAA), a standard drink contains half an ounce of alcohol.

Image credit: US National Institute on Alcohol Abuse and Alcoholism (NIAAA)

However, a standard drink can also affect everyone differently, and alcohol content can vary depending on the type of drink and preparation methods (such as in the case of hard liquor or a cocktail). This is why BACtrack simply says, don’t do it.

So what should I do if I have already had a few drinks?

Well, you already know the answer to this don’t you – get a Grab car or taxi. Leave the car behind, it’s fine, there’s a 99.9 percent chance it’ll still be there the next day. Hide some cash before you start your night out so you know that even if you overspend while having drinks, you’d still have that RM30 tucked away to get a ride home. And if you absolutely must, sleep in your car’s passenger seat, lower the window slightly for ventilation, and make sure it’s locked and secure – while this is not the most ideal, it’s better than getting caught for drunk driving or worse, injuring yourself or others on the road.

Our thoughts, prayers and sincere condolences go out to the family of Corporal Safwan Muhammad Ismail.

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