Article 130 of the Administrative Offences Code: does a driver have the right to be examined in a medical institution?

If a person is stopped by police officers and shows signs of alcohol intoxication, that person has the right to undergo a sobriety examination both at the place of the stop and in a medical institution. Attorney Petryk.

A person may refuse an examination at the roadside without giving any grounds or reasons. This is a lawful right to be examined by a professional medical specialist who can determine whether the person is in fact intoxicated, using dedicated equipment, in conditions that allow the examination to be carried out in accordance with the instructions, with appropriate devices and in compliance with all requirements for such testing.

In practice, drivers are sometimes offered an examination in roadside conditions, for instance in severe frost or, conversely, in extreme heat, where a breathalyser may give false readings. That is why a person is entitled to undergo the sobriety examination in a medical institution in a case under Article 130 of the Code of Ukraine on Administrative Offences.

To use this right, the person must file a formal request for examination in a medical institution.

This is confirmed by case law, in particular by the appellate instance of the Kyiv region, which upheld the arguments of attorney Petryk and his client that referral to a medical institution is mandatory where the person has expressed such a wish in a case under Article 130.

During the hearing in the court of first instance, and later in the appellate instance, it was established that the person had not been referred to a medical institution although such a request had been filed. Nevertheless, the police officers drew up a report under Article 130 contrary to the requirements of the law.

Having analysed the legislation, in particular the provisions stating that a person has the lawful right to undergo a sobriety examination in a medical institution, attorney Petryk appealed the decision of the first instance. The court of appeal granted the appeal, quashed the decision of the first instance and acquitted the person of the offence under Article 130 of the Code of Ukraine on Administrative Offences.