AN ANALYSIS OF THE DRIVING UNDER THE INFLUENCE OF

ALCOHOL LAW OF THE PHILIPPINES VIS--VIS CALIFORNIA

DRUNK DRIVING LAWS

Thesis submitted in partial fulfillment of the requirements of the Doctor of

Jurisprudence degree in the
College of Law at Silliman University

Abiera, Jose Sandino B.

JD-IV, Silliman University

ABSTRACT

The author of this study discusses about the drunk driving laws in the State
of California and the Philippines. The study also talks about the history of the laws
in both jurisdiction. The California law on drunk driving has a long history while
its Philippine counterpart is quite new. California drunk driving laws have been in
existence since 1911 while the Philippines never really had its own drunk driving
law up until this year wherein Republic Act 10586 or the Anti-Drunk and
Drugged Driving Act of 2013 was enacted into law. The author of this study talks
about key points in the field of driving under the influence of alcohol that has been
undertaken in the State of California and shares his view in applying the same in
the Philippine setting.
The reason the author focuses on the State of California is the fact that The
Philippines is very similar in legal format in terms of penal laws being former
Spanish colonies thus having Spanish legal influences that have remained the basis
of current and existing law in their respective jurisdictions. The State of California
and the Philippines share a very similar socio political and cultural history
although over time the economy and technological advancement of these two
states have shown significant disparity. The Philippines is a developing country
while the State of California is part of the United States of America, which is one
of the world leaders in terms of economy and technology.
The issues are quite interesting and enlightening, as they will display the
possible situations that would probably occur once the drunk driving law in the
Philippines would be implemented. The author also shares his view on the
feasibility and practicability of the newly enacted drunk driving law of the
Philippines,

CHAPTER I
Introduction
Law and order exist for the purpose of establishing justice and when they
fail in this purpose they become the dangerously structured dams that block the
flow of social progress, according to Nobel Peace Prize awardee Martin Luther
King, Jr.
Law is defined as the system of rules that a particular country or
community recognizes as regulating the actions of its members and may enforce
by the imposition of penalties. Law is essential and indispensable in a society.
Without law, there would be no order. Without order, there would be chaos not just
in a certain society, but also throughout the globe. The national and global
importance of law is undeniable. One can only imagine a society without law and
order. The repercussions would ultimately be catastrophic.
In the same note, traffic management laws have the same importance as
other laws governing every society. However, its significance is often overlooked
and taken for granted, especially in our country. It is usually regarded as
something that is of little importance, as it ordinarily constitutes basic common
sense. But in a time where land transportation has become almost indispensible to
mans everyday life, one has to value the significance of traffic management laws
in our community. Evidently, the importance of traffic management law is for the
prevention, if not the total elimination, of accidents in the use of land
transportation, specifically accidents involving drivers who are drunk. In
connection, the World Health Organization (WHO) revealed that the consumption
of alcohol, depending on the level of intoxication, regularly increases the
3

probability that vehicular accidents may happen because the person is more
susceptible to poor judgment and decreased reaction time. 1 The streets of the local
community have to be safe for the public. But people who drive while being
intoxicated, just increases the probability of vehicular accidents to happen.
Therefore, it is definitely worth looking into by the people in power, particularly
the legislative department of the government.2

Driving requires a variety of skills that can change continually. A driver

must maintain alertness and be able to react quickly to hazards, see clearly, and
possess the ability to judge distance and speed. Certain drinking patterns can
impair a number of the skills necessary for safely driving a motor vehicle and
increase crash risk.3
Drinking has long been an accepted practice in Filipino culture. This has
reflected badly on the country in the 2011 Global Status Report on Alcohol and
Health conducted by the World Health Organization (WHO). Bases on the
research, the Philippines ranks 2nd in most alcohol consumed in Southeast Asia.
Alcohol prevalence among Filipinos is estimated at five million drinkers for a
population of 90 million.4
According to MMDA Chairman Tolentino, Drinking and driving has
become a norm here in the Philippines. Drunk drivers are confident that they are
1 Marjorie Gorospe, Anti-drunk driving bill passes final reading in Congress, (2011),
http://ph.news.yahoo.com/blogs/the-inbox/anti-drunk-driving-bill-passes-final-readingcongress-20110331-003100-457.html, September 30, 2012
2 Ibid.
3 Drunk Driving, http://www.studymode.com/essays/Drunk-Driving -1105138.html,
(2012)
4Health Justice Philippines (2013, February 21), Drunk Driving Laws lacking in the
Philippines from http://www.healthjustice.ph/?action=viewArticle&articleId=818
4

sober enough to get home, and the realization of the truth comes a little too late.
These drivers are not afraid because their actions have no immediate consequences
until they get into an accident or endanger other people with their actions.
Globally, traffic accidents are the leading cause of injury-related deaths. 5
Road safety campaign is one strategy of health promotion, which is used to
advocate for the improvement of road safety behaviour of individuals and
communities. In 2011 alone, reported fatalities from traffic accidents reached
8,175 cases. With effective education and legislation, these deaths may be
prevented.6
This general ignorance about alcohol's effect on driving ability affected
subjective evaluations of the "causes" of accidents. Accidents are multi-faceted
situations; accidents rarely have only one cause. Attributing a single cause to an
accident, such as speeding or crossing a road divider, may conceal the reasons for
such driving behavior, particularly the influence of alcohol. Certainly, at times
when the extent of alcohol's effect on driving ability was unknown, individuals
were less likely to attribute an accident to drunk driving.7

Recently, Republic Act 10586 was enacted and it now governs the enforcement of
the campaign against drunk driving in the Philippines. Under Section 2 of the said
law, it discusses the need for the country to ensure safety of road users. Pursuant to
the Constitutional principle that recognizes the protection of life and property and
the promotion of the general welfare as essential for the enjoyment of the blessing
of democracy, it is hereby declared the policy of the State to ensure road safety
5 ibid
6Health Justice Philippines (2013, February 21), Drunk Driving Laws lacking in the
Philippines from http://www.healthjustice.ph/?action=viewArticle&articleId=818
7 Michael Laurence, The Development of California Drunk Driving Legislation (1988)
5

through the observance of the citizenry of responsible and ethical driving

standards.8

Towards this end, the State shall penalize the acts of driving under the
influence of alcohol, dangerous drugs and other intoxicating substances and shall
inculcate the standards of safe driving and the benefits that may be derived from it
through institutional programs and appropriate public information strategies.9
The current law in the Philippines which governs drunk driving is R.A.
10586 entitled AN ACT PENALIZING PERSONS DRIVING UNDER THE
INFLUENCE OF ALCOHOL, DANGEROUS DRUGS, AND SIMILAR
SUBSTANCES, AND FOR OTHER PURPOSES. The current law was just signed
by President Benigno Aquino, III last May 2013 and was already effective fifteen
days after publication in the Official Gazette or a newspaper of general circulation.
The Implementing Rules and Regulations to be drafted by certain administrative
agencies have not been published.

8 Republic Act 10586, Section 2

9Ibid.
6

Definition of Key Terms

In order to better understand this law we need to identify key items which
are under the law. Section 3 of R.A. 10586 defines some terms which are relevant
to the issue.
(a) Alcohol refers to alcoholic beverages classified into beer, wine and
distilled spirits, the consumption of which produces intoxication.

(b) Breath analyzer refers to the equipment which can determine the blood
alcohol concentration level of a person through testing of his breath.

(c) Chemical tests refer to breath, saliva, urine or blood tests to determine the
blood alcohol concentration level and/or positive indication of dangerous
drugs and similar substances in a persons body.

(d) Dangerous drugs and other similar substances refer to drugs listed in the
schedules annexed to the 1961 Single Convention on Narcotics Drugs, as
amended by the 1972 Protocol, and in the schedules annexed to the 1971
Single Convention of Psychotropic Substances as enumerated in its
attachment which is an integral part of Republic Act No. 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002 and those
that the Board may reclassify, add to or remove from the list of dangerous
drugs.

(e) Driving under the influence of alcohol refers to the act of operating a motor
vehicle while the drivers blood alcohol concentration level has, after being
subjected to a breath analyzer test, reached the level of intoxication, as
established jointly by the Department of Health (DOH), the National Police
Commission (NAPOLCOM) and the Department of Transportation and
Communications (DOTC).

(f) Driving under the influence of dangerous drugs and other similar
substances refers to the act of operating a motor vehicle while the driver,
after being subjected to a confirmatory test as mandated under Republic Act
No. 9165, is found to be positive for use of any dangerous drug.

(g) Field sobriety tests refer to standardized tests to initially assess and
determine intoxication, such as the horizontal gaze nystagmus, the walkand-turn, the one-leg stand, and other similar tests as determined jointly by
the DOH, the NAPOLCOM and the DOTC.

(h) Motor vehicle refers to any land transportation vehicle propelled by any
power other than muscular power.

(i) Motor vehicles designed to carry hazardous materials refer to those

designed to carry or transport materials which may endanger health and lives
of the public.

(j) Public utility vehicles refer to motor vehicles for hire and used to carry or
transport passengers or goods.10

Scope and Limitation

Limits and Bounds of the Study

This study focuses principally on the prevalent issue of driving under the
influence of alcohol and other substances within two jurisdictions, namely: the
laws of California and the law of the Philippines. The author used court cases,
legal journals, new and editorial articles, and other similar editorial articles in the
formulation of this study.
What is driving under the influence of alcohol and other substance? And
how are they similar or different from state to state, more particularly
between the State of California and the Philippines. This study will examine
the laws on drunk driving in California together with the appropriate
jurisprudence on the matter and determine whether or not such findings are
applicable to Philippine setting considering the novelty of the law on drunk
driving in this country.
10Section 3, Republic Act 10586
9

The reason the author focuses on the State of California as mentioned in

the earlier part of this study is the fact that the Philippines is very similar in
legal format in terms of penal laws being former Spanish colonies thus having
Spanish legal influences that have remained the basis of current and existing
law in their respective jurisdictions. Both states also share a very similar socio
political and cultural history although over time the economy and
technological advancement of these two states have shown significant
disparity.
The study only includes American Jurisprudence because there has been
no cases on the study which has been addressed by the Supreme Court of the
Philippines. Spanish and American laws have influenced the Philippines
modern laws. Governed under the colonial rule of Spain and later the United
States, it is not surprising that the Philippines would base much of its laws and
court system on the Spanish and American models.11
Moreover, Philippine laws governing insurance cites California law. In a case
decided by the Supreme Court, our court held that the laws applicable to insurance
in their order of applicable priority are the Insurance Code, in the absence of
applicable provisions in the Insurance Code, the Civil Code, and in the absence of
applicable provisions in the Insurance Code and the Civil Code, the general
principles prevailing on the subject in the United States, particularly in the State of
California where our Insurance Code was based. 12 The resemblance between some
of the provisions on the Bill of Rights of the Philippine Constitution to the
Constitution of the United States enables us to articulate that there is a connection
between these two states. Furthermore, Article 1 of the California Constitution
(Declaration of Rights) also provides the same protection to individual freedoms
11 Bautista R. Jr. (n.d). The Philippine Legal System.Retrieved February 12, 2013. From
http://suite101.com/article/the-philippine-legal-system-a212057#.UWrxCbWnp1E
12Constantino vs. Asia Life Insurance Co., 87 Phil 248; Gercio vs. Sun Life Assurance
Company of Canada
10

as does our Constitution, which states that, All people are by nature free and
independent and have inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.

Objectives
This study is aimed to look into a specific provision in our countrys traffic
management law, particularly the law that penalizes drivers who drive under the
influence of alcohol. After doing so, the author will compare the said laws with
regard the subject matter with that of other states, particularly the State of
California. The author examines the Philippine drunk driving law to identify
problem areas, if any, that might raise constitutional challenges, in light of the
California experience, given the resemblance of the Philippine and California laws
on those areas.
At the end of this study, the author would like to come to a determination
on whether or not our countrys anti-drunk driving law is sufficient and
appropriately penalizing those who commit this driving infraction and whether the
legislative branch of the government, the branch who is tasked to enact laws in the
country, has done measures to address this concern. In addition, the author also
seeks to discover whether the current law regarding Driving Under the Influence
11

of Alcohol and Other Substance can be properly enforced and the terms and
conditions of the law would be just and cannot be questioned with regard its
constitutionality.
Relatively, there are number of cases not within this jurisdiction that
questioned the constitutionality and the accuracy of the results of the breathalyzer
equipment which is used to determine the blood alcohol concentration (BAC)
level of a person who is suspected of drunk driving. These cases will be discussed
in the later part of this study. Although this field is quite novel in the Philippines, it
is best to consider other issues with regard this matter that have already been in
force in other states, particularly the State of California. Other likely issues that
would occur will also be discussed further. Lastly, the author will discuss the
findings of this study and determine its application in the Philippine setting in the
legal, economic, and political standpoint.
Alcoholic Beverages And Intoxication
An alcoholic beverage is a drink and psychoactive drug containing ethyl
alcohol, which is commonly referred to as ethanol.13 Alcoholic beverages are
divided into three general classes for taxation and regulation of production: beers,
wines, and spirits (or distilled beverage). They are legally consumed in most areas
around the world with over 100 countries having laws regulating their production,
sale, and consumption.14 The production and consumption of alcohol occurs in
most cultures of the world, from hunter-gatherer peoples to nation-states. Alcohol

13Drugs and society - Page 189, Glen (Glen R.) Hanson, Peter J. Venturelli, Annette E.
Fleckenstein 2006
14Taylor, F. Sherwood (1945). "The Evolution of the Still".Annals of Science5 (3): 186.
12

is widely available; with beer being the third most popular drink overall in the
world, after water and tea.15
Alcohol is absorbed throughout the gastrointestinal tract, but more slowly
in the stomach than in the small or large intestine. For this reason, alcohol
consumed with food is absorbed more slowly, because it spends a longer time in
the stomach. Furthermore, alcohol dehydrogenase is present in the stomach lining.
After absorption, the alcohol passes to the liver through the hepatic portal vein,
where it undergoes a first pass of metabolism before entering the general
bloodstream.16
Alcohol absorption can be slowed by ingesting alcohol on a full stomach.
Spreading the total absorption of alcohol over a greater period of time decreases
the maximum alcohol level, decreasing the hangover effect. Thus, drinking on a
full stomach or drinking while ingesting drugs which slow the breakdown of
ethanol into acetaldehyde will reduce the maximum blood levels of this substance
and thus decrease the hangover. Alcohol in non-carbonated beverages is absorbed
more slowly than alcohol in carbonated drinks.17
Short-term effects of alcohol consumption include intoxication and
dehydration. Alcohol intoxication affects the brain, causing slurred speech,
clumsiness, and delayed reflexes.18
Blood alcohol content (BAC), also called blood alcohol concentration,
blood ethanol concentration, or blood alcohol level is most commonly used as a
15Forbes, Robert James (1970). A short history of the art of distillation: from the
beginnings up to the death of Cellier Blumenthal
16Alan J.Buglass, ed. (2011). Handbook of alcoholic beverages : technical, analytical
and nutritional aspects. Chichester: Wiley
17Roberts, C.; Robinson, S.P. (2007). "Alcohol concentration and carbonation of drinks:
The effect on blood alcohol levels". Journal of Forensic and Legal Medicine
18 Ibid

13

metric of alcohol intoxication for legal or medical purposes.19

There are many factors that affect BAC in the human body. Some of them is the
amount of time in which drinks are consumed, the body weight of the individual,
gender and food (to a much lesser extent). Small amounts of alcohol in the system
can even affect judgment and coordination and that increased amounts affect the
body and mind more dramatically. Large amounts of alcohol in the system can
kill.20
Alcohol intoxication is a risk factor in some cases of catastrophic injury,
particularly for unsupervised recreational activity. A study in the province of
Ontario in Canada based on epidemiological data from 1986, 1989, 1992, and
1995 states that 79.2% of the 2,154 catastrophic injuries recorded for the study
were preventable, of which 346 involved alcohol consumption.21
Consumption of alcohol can greatly affect the bodys reflex that mark a
drunk driver a roadside hazard and is very dangerous to be operating in public
roads where other people risk their lives at the hands of a drunk driver.

19 Ibid
20 Blood Alcohol Concentration, http://www.clemson.edu/campus-life/campusservices/redfern/alcohol/bac.html, (2013)
21Tator, Charles H., ed. (2008). Catastrophic Injuries in Sports and Recreation: Causes
and Prevention : A Canadian Study (2 ed.).
14

CHAPTER II

History of California Drunk Driving Laws

Throughout the United States of America, every state has rules concerning
drinking and driving. In 1910, the first state to adopt drunk-driving laws was New
York. California was the next state to pass driving under the influence laws, and
the other forty-eight states soon followed suit. These early DUI laws simply stated
that a driver could not operate a motor vehicle while intoxicated. However,
intoxication was not clearly defined by the lawmakers and courts at this point. 22
California has maintained laws prohibiting drunk driving since 1911, and
during most of the time, the state has relied on statutes containing severe
punishments as the principal means of deterring the drunk driver.
22 History of DUI Laws, http://www.liquorlaws.net/duilaws.html, (2009)
15

A historical examination of the government's response to this criminal

behavior provides several valuable perspectives. First, drafting effective drunkdriving countermeasures needs awareness of previous efforts aimed at restraining
the behavior. Without such knowledge, observers may ignore valuable
opportunities to compare data and test assumptions. Next, even if one is cognizant
of the historical background using previous programs results to evaluate current
proposals requires an understanding of the context in which they were
implemented. Third, history demonstrates the complexity of drunkdriving as a
societal problem.23
In the State of California, the first era of drunk-driving policy development
relates with the initial formation of nationwide motor vehicle codes. The rapid
commercial success of the automobile in the early twentieth century
revolutionized transportation policy. The spread of the motor vehicle, with its
speed and potential threat to public safety, required that government assume
responsibility for regulating transportation.
On the outset, the local governments regulated the traffic safety but it soon
recognized that statewide traffic laws were needed. Accordingly, the legislative
department of the state enacted statutes that were designed to promote uniformity
among local regulations around the state. It established an ample set of traffic
regulations to govern the competency of motor vehicle operators and improve the
overall vehicle safety through equipment standards. Lastly, the legislature created
a statewide authority that was responsible for the regulation of drivers license and
vehicle registration. The State of California, like some other states that had early
prohibitions versus drunk driving, enacted measures during this era that defined
drunk driving based on the level of the driver's impairment.
Californias earliest law on drunk driving was a 1913 statute which
provided that no intoxicated person shall operate or drive a motor vehicle or other
23The Development of California Drunk Driving, Michael Laurence, page. 2
16

vehicle upon any public highway within the state.24

Under this statute, to convict a violator required showing that the driver was
"intoxicated" and exhibited particular conducts that display this level of
impairment. It did not state the standards and definition of a person being
intoxicated. Although later statutes reduced the phrase from "intoxication" to the
less demanding standard of "under the influence of intoxicating liquor. Does this
mean that the impairment of the individual driver served as the definitional
element for statutes prohibiting drunk driving?
The legislative approach to drunk driving during this period was typical of
other safety problems. The Legislature tried to create a complete scheme for
regulating the conduct of motorists on the highways and was more concerned with
the general provisions than with the specific implementation of individual
regulations. This approach by the Legislature can be described as a waiting
strategy to find out what amendments and improvements can be done later on
when violations of these statutes occur. The Legislature prescribed general
definitions of the prohibited conduct and awaited the results. As time passed and
the defects of the policies were revealed, the Legislature enacted refinements to
the statutes.
A refinement was done in the future. In 1969, the Legislature created a
presumption that the driver is under the influence if the person had 0.10 percent or
more by weight of alcohol in his or her blood. 25
Reliance on this presumption subsequently proved inadequate. The
Legislature realized that the ultimate question was still defined in terms of the
defendants subjective behavior and condition: Was the defendant under the
24Stats.1913, Chapter 326, Section 17, p. 646; Burg v. Municipal Court (1983) 35 Cal.
3d 257, 262.)
25 Burg v Municipal Court, (1983), 35 Cal. 3d at p. 263
17

influence at the time he drove? In the case of Burg v. Municipal Court (1983), 35
Cal. 3d, the court observed that celerity and certainty of punishment were
frustrated by the ambiguity of the legal criteria; no matter what his blood-alcohol
level, a defendant could escape conviction by raising a doubt as to his
intoxication.26
Because the standards before was not defined, any person who may contain
a blood-alcohol volume exceeding the legal limit may still evade conviction by
merely raising an uncertainty that he was not impaired and would not be
considered as intoxicated. Intoxication would depend on various factors that vary
from one person to another. This topic would later be discussed on the later part of
this study.
Then came the development of the modern vehicle society. California
entered a new phase in traffic safety policy with the enactment of the California
Vehicle Code of 1935. It concluded several years of studying and planning, and
resulted in a recognition that California's motor vehicle accident rate was
unacceptably high. In 1927 California's motor vehicle death rate per 100,000
population was 38.2 compared to 19.6 for the entire United States. The Legislature
recognized that the "abnormal increase in traffic fatalities" was due to the "great
increase in the number of motor vehicles used and operated upon the highways of
the State of California. The law must be dynamic and should be changing together
with the development and transformation of society. The proposed solution to the
traffic safety problem was a complete revision of the motor vehicle laws to
incorporate the advances in traffic safety knowledge.27
26Maxino, Marcelino, LL.M., Cases and Issues for Philippine Comparative Study, Esq.,
(2004), p. 148
27Report of the Legislative Committee of the Senate and Assembly Relating to Traffic
Hazards and Problems and Motor Vehicle Public Liability Insurance. Submitted to the
California Legislature 17 Table 5 (California Legislature: 1929).

18

A major problem during this era that confronted the Legislature was
deciding who would impose the sanctions. The early agreement of traffic safety
experts was that the judiciary should be the branch of government that shall be
responsible for punishing vehicle-code violators. However, when the state
established a separate agency to regulate drivers' licensing, it created a dual
authority. In many cases, both the judge who meted out criminal punishment to the
traffic offender and the Department of Motor Vehicles, which was responsible for
ensuring that each driver was competent to operate a vehicle, had the power to
revoke or suspend the offender's license. The traffic laws of California were
beginning to transform as the modern day laws of the state. However, key
circumstances would need for innovation of the current statutes.
At this point in time, the basic format for a comprehensive traffic safety
program was set. The Department of Motor Vehicles had been established, the
rules of the road were enacted, and regulations concerning drivers' licensing and
vehicle registration were promulgated.
Drunk-driving legislation during this period reflected influence to many
different sectors namely the scientific community including forensic scientists, the
federal government and the federal bureaucracy, and the medical community,
particularly those involved in treating alcoholism and alcohol abuse. The federal
government prompted some of the state legislation during this period, and
Congress and the U.S. Department of Transportation emerged as strong and
permanent influences on traffic-safety policy making. Finally, in the latter part of
this period, the medical community's influence appeared in legislation that
permitted judges to order evaluation of drunk drivers to determine if they might
benefit from an alcohol abuse treatment program.28
28Vehicle Code 307 (codifying several statutes) (mandatory); Vehicle Code 306
(codifying 1935 Stat. ch, 605, effective September 15, 1935) (discretionary).

19

As discussed in the earlier part of this study, a significant change to the

definition of drunk driving occurred in 1969 with theLegislature's adoption of a
blood alcohol concentration presumption law, which had received the endorsement
of the National Safety Council, the American Medical Association, and other
organizations. The aforementioned statute stated that an individual with a blood
alcohol concentration of 0.10 percent or greater would be "presumed to be under
the influence." However, the presumptions were not conclusive and hence
disputable. The defendant could produce evidence that he or she was not
intoxicated even though his or her blood alcohol concentration level was above
0.10 percent.29
The State of California also adopted an implied consent law in 1966 to
support in the enforcement of laws against drunk driving. 30 This law provides that
drivers, by using the state roads, consent to a blood alcohol concentration test
whenever they are lawfully arrested for a driving under the influence of alcohol
offense and that an automatic license suspension for six months will be sanctioned
if they refuse to submit to the ordered test. They must submit a lawfully ordered
test result.31
A refusal to submit to a lawfully ordered test results in an automatic license
suspension for six months. Moreover, the refusal may be used in a subsequent
drunk-driving prosecution as evidence of being under the influence.
The main reason for the implied consent law was to aid in prosecutions of
drunk-driving offenses. Without an implied consent law, drivers could refuse a
police request for a chemical analysis and would render the law useless. 32
29Vehicle Code 23126 (codifying 1969 Stat. ch. 231, effective November 10,1969).
30Vehicle Code 13353 (codifying 1966 Stat. ch, 138, effective October 6,1966).
31 Michael Laurence, The Development of California Drunk Driving Laws
32Ibid
20

However, in conducting such tests, the state must consider the vested rights
of its citizens especially the right to privacy. The issue regarding the implied
consent of the persons prosecuted for drunk driving will be thoroughly discussed
in the later part of this study.
Prior to the implementation of the 1966 law, prosecutions of offenders
relied on subjective observations made by police officers, for example, that the
driver smelled of alcohol, was weaving, or was otherwise acting drunk. While
researchers had long been able to estimate the likelihood of impairment by using
the driver's blood alcohol concentration, it was often impossible to obtain blood or
breath samples. The influence for these laws came from the scientific community,
particularly those involved in research on the effects of alcohol on driving
ability.33
From the 1980s to the present day, the drunk driving laws differ from
previous eras in that drunk-driving strategies exhibit a greater reliance on punitive
measures. California legislation over the past several years has restructured and
reemphasized criminal sanctions. Minimum incarceration terms and fines have
been established, and discretion to plea-bargain or suspend sentences has been
curtailed.34
Presently, the law that regulates drunk driving in the State of California is
Section 23152 of its Vehicle Code, which defines Driving Under Influence of
Alcohol or Drugs as:
(a) It is unlawful for any person who is under the influence of any
alcoholic beverage or drug, or under the combined influence of any
alcoholic beverage and drug, to drive a vehicle.

33 Ibid
34 Ibid.
21

(b) It is unlawful for any person who has 0.08 percent or more, by weight,
of alcohol in his or her blood to drive a vehicle.
For purposes of this article and Section 34501.16, percent, by weight, of
alcohol in a person's blood is based upon grams of alcohol per 100
milliliters of blood or grams of alcohol per 210 liters of breath.
In any prosecution under this subdivision, it is a rebuttable presumption that
the person had 0.08 percent or more, by weight, of alcohol in his or her
blood at the time of driving the vehicle if the person had 0.08 percent or
more, by weight, of alcohol in his or her blood at the time of the
performance of a chemical test within three hours after the driving.
(c) It is unlawful for any person who is addicted to the use of any drug to
drive a vehicle. This subdivision shall not apply to a person who is
participating in a narcotic treatment program approved pursuant to Article 3
(commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5
of the Health and Safety Code.
(d) It is unlawful for any person who has 0.04 percent or more, by weight,
of alcohol in his or her blood to drive a commercial motor vehicle, as
defined in Section 15210.
In any prosecution under this subdivision, it is a rebuttable
presumption that the person had 0.04 percent or more, by weight, of alcohol
in his or her blood at the time of driving the vehicle if the person had 0.04
percent or more, by weight, of alcohol in his or her blood at the time of the
performance of a chemical test within three hours after the driving.35
Under Californias current driving under the influence (DUI) laws, its
illegal to operate a motor vehicle with any of the following blood alcohol content
35 California Vehicle Code, Section 23512
22

(BAC) percentages of 0.08% or higher for those who are 21 years old or older
operating a regular passenger vehicle. It is also illegal to operate a motor vehicle
with a blood alcohol content (BAC) of 0.04% or higher for persons operating a
commercial vehicle. All drivers who are younger than 21 years old, there is a zero
percent tolerance which means that they are not allowed to operate a motor vehicle
if there is alcohol present in their system.

History of the Law on Driving Under the Influence of Alcohol in the

Philippines
Before Republic Act 10586 was enacted into this year, the governing law in
the Philippines dealing with driving under the influence of alcohol is Section 53 of
Republic Act No. 4136, also known as the Land Transportation and Traffic Code,
which states that: No person shall drive a motor vehicle while under the influence
of liquor or narcotic drug. Further, Section 56(f) of the same Code, which lays
down the fines and penalty to be imposed on drivers who drive under the influence
of alcohol, states that: Driving a motor vehicle while under the influence of liquor
or narcotic drug, a fine of not less than two hundred pesos nor more than five
hundred pesos, or imprisonment of not more than three months, or both, at the
discretion of the Court.
The law is evidently inadequate. It lacks depth and is very limited in scope.
Further, it seems that the legislature did not pay enough attention to the undeniable
gravity or the impact of driving under the influence of alcohol on the roads of our
countrys communities. This provision was never implemented by the authorities
due to certain circumstances such as the economic condition of the country and the
lack of force given to the statute. No cases were ever decided by the Supreme
Court with regard the violation of the provision of Section 56 of Republic Act
23

4316. Intoxication may only be considered as an aggravating circumstance under

the RPC when a driver gets into a traffic accident. Under the said provision, The
intoxication of the offender shall be taken into consideration as a mitigating
circumstances when the offender has committed a felony in a state of intoxication,
if the same is not habitual or subsequent to the plan to commit said felony but
when the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance.36
The intoxication of the offender shall be taken into consideration as a
mitigating circumstances when the offender has committed a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan to commit said
felony but when the intoxication is habitual or intentional, it shall be considered as
an aggravating circumstance.37 In the case, of drunk driving, intoxication may be
considered aggravating because the driver, in knowing that he is operating a
vehicle, his intoxication can be shown to be intentional for a prudent person
should know that driving in a state of drunkenness is hazardous to him and to the
public.
Philippine Secretary of Justice Leila de Lima said in an interview that,
Republic Act No. 4136 or the Land Transportation and Traffic Code merely
prohibits driving under the influence of alcohol and narcotic drugs with a very
light corresponding penalty despite the great risk it poses to the safety of
pedestrians. The only time a drunk driver is apprehended is when he has violated
some other traffic regulation and was latter on found to be intoxicated.38

36 Revised Penal Code of the Philippines, Article 15 (Par.3)

37 Ibid.
38AmylineQuienChing, Drinking and Driving in the Philippines: Until Death do they
part, (2010) <http://www.mb.com.ph/node/268549/drinking-and-driving-philippine>
September 30, 2012
24

This, however, should not be the case. The situation is without question that
what is needed is a law that will totally remove drunk drivers from the roads and
highways of the Philippine communities, and not just punishing them if they are
just caught coincidentally. The provision of Republic Act 4316 is similar to the
1911 statute of the State of California on drunk driving. Lack of definition and
clarity on the matter prevents authorities to implement the statute.
The improved regulation of drunk driving can be achieved by imposing
heavier fines and penalties on persons who drive while being intoxicated. This is
later on adopted by the new law which imposes higher fines and penalties. Not
only that, but the proper authorities should be compelled or obligated to apprehend
drivers who are suspected to be intoxicated. By doing this, people will become
more cautious on driving while being intoxicated with alcohol since they will be
reprimanded and slapped with a heavy fine and penalty and the possibility of
going to jail for a particular period of time.
Philippine Secretary of Justice Leila de Lima recognizes that driving under
the influence of alcohol is a national concern, which needs a great amount of
attention and must be addressed and battled through the implementation of stricter
fines and penalties in order to effectively eradicate the problem. 39 She further said
that, it is worth emphasizing that keeping our roads safe by instilling discipline in
motorists is the most effective way of preventing unnecessary injuries and loss of
innocent lives caused by reckless driving. 40
Because of the importance and the concern regarding driving under the
39EduPunay, DOJ backs harsher penalties for reckless driving, (2012) <
http://www.philstar.com/Article.aspx?articleId=795159&publicationSubCategoryId= >
September 30, 2012
40 Ibid.
25

influence of alcohol, R.A. 10586 was enacted and provides much more rigid fines
and penalties and provides much more specific procedure in the implementation of
the drunk driving law.41The law now mandates the Land Transportation Office,
Philippine National Police, Metropolitan Manila Development Authority and
deputized local traffic enforcers to conduct sobriety tests on drivers suspected of
drunk driving.42Motorists may be pulled over on suspicion of driving under the
influence (DUI) by a law enforcement officer who has probable cause to believe
that a person is driving under the influence of alcohol, dangerous drugs and/or
similar substances by apparent indications and manifestations.43
The reliability and accuracy of breathalyzers would be later discussed in the
subsequent chapter. The author will also subsequently discuss the use of breath
analyzers in the State of California.

41 : Michael Lim, Its Official, Drunk Driving is Against the Law (May 31, 2013),
http://newsinfo.inquirer.net/417711/its-official-drunk-driving-is-against-thelaw#ixzz2de0eqZEE
42 Ibid.
43 Ibid.
26

CHAPTER III

ANALYSIS

Examining Republic Act 10586

The focal point in this law that prohibits drunk driving is embodied in Section 5
thereof wherein it states that, It shall be unlawful for any person to drive a motor
vehicle while under the influence of alcohol, dangerous drugs and/or other similar
substances.44
Currently, there is no established intoxication level set because the
Implementing Rules and Regulations have not been released. The law does not
specify the level of intoxication needed to fall within the definition of a DUI.
Instead of setting a threshold level, the law gives the determination to the
Department of Health, National Police Commission and Department of
Transportation and Communications.45
44Republic Act. 10586, Section 5
45Ibid., 33.
27

This would raise a constitutional question of whether the power to

determine the threshold level can be delegated under the non-delegation of
legislative powers principle. A power delegated cannot be re-delegated. Under the
1987 Philippine Constitution, The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the provision on
initiative and referendum.46
However, an exception to the rule on non-delegation of legislative power is the
delegation of rule-making power to administrative bodies. Congress may delegate
to another branch of the Government the power to fill in the details in the
execution, enforcement or administration of a law, it is essential, to forestall a
violation of the principle of separation of powers, that said law must be complete
in itself, it must set forth therein the policy to be executed, carried out or
implemented by the delegate and fix a standard the limits of which are sufficiently
determinate or determinable to which the delegate must conform in the
performance of his functions.
The principle of separation of powers ordains that each of the three great
branches of government has exclusive cognizance of and is supreme in matters
falling within its own constitutionally allocated sphere. 47 Necessarily imbedded in
this doctrine is the principle of non-delegation of powers, as expressed in the Latin
maxim potestas delegata non delegari potest, which means what has been
delegated, cannot be delegated. This doctrine is based on the ethical principle that
such delegated power constitutes not only a right but a duty to be performed by the
delegate through the instrumentality of his own judgment and not through the
intervening mind of another.48 However, this principle of non-delegation of powers
46 Article VIII, Sec. 1, 1987 Philippine Constitution
47 Angara v. Electoral Commission, 63 Phil. 139, 156 (1936).
48 Abakada Guro Party List v. Ermita, 469 SCRA 1, 115-116.
28

admits of numerous exceptions, one of which is the delegation of legislative power

to various specialized administrative agencies like the Board in this case. 49
The rationale for the aforementioned exception was clearly explained in the
ruling in Gerochi v. Department of Energy50
The Supreme Court in this case averred that, In the face of the increasing
complexity of modern life, delegation of legislative power to various specialized
administrative agencies is allowed as an exception to this principle. Given the
volume and variety of interactions in todays society, it is doubtful if the legislature
can promulgate laws that will deal adequately with and respond promptly to the
minutiae of everyday life. Hence, the need to delegate to administrative bodies
the principal agencies tasked to execute laws in their specialized fields the
authority to promulgate rules and regulations to implement a given statute and
effectuate its policies. All that is required for the valid exercise of this power of
subordinate legislation is that the regulation be germane to the objects and
purposes of the law and that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law. These requirements are
denominated as the completeness test and the sufficient standard test. 51
However, the delegation of power is allowed if it merely fills in the details
in the execution, enforcement or administration of a law. Section 17 of RA 10586
gives the DOTC, the DOH and the NAPOLCOM the power of not only
promulgating the implementing rules but it also gives them the authority to set and
define the crime of drunk driving. It gives these agencies the power to set the
necessary blood alcohol concentration level of a person who may be arrested for
driving under the influence of alcohol. These administrative agencies set the
49 Bureau Of Customs Employees Association V Teves, G.R. No. 181704
50 Gerochi v Department of Energy, G.R. No. 159796, July 17, 2007, 527
SCRA 696.
51 Ibid.
29

threshold and in a way it defines an element of the crime of driving under the
influence of alcohol. The doctrine of non delegation of legislative powers admits
certain exceptions but in this case it should not be considered as one for this undue
delegation of power defines an element of the crime and not merely fills in the
details for the execution and implementation of the law. The law itself must set the
blood alcohol concentration limit and should not be left within the discretion of the
administrative agencies thereafter mentioned.

In California, the current blood alcohol level limit is pegged at 0.08

percent.52Nevertheless, the Philippines can apparently copy other countrys
intoxication level as determined by the BAC, expressed in percentage of volume
measuring the alcohol in ones blood. This can be attained through the use breath
analyzers that would be discussed furthermore in this study.
An interesting issue realized by the author is that the law only punishes
people who operate a motor vehicle under the influence of alcohol, dangerous
drugs and/or other similar substances. The law defines motor vehicle as any land
transportation vehicle propelled by any power other than muscular power. 53 It is
noteworthy that certain vehicles that operate on muscular power that use the public
highways and roads. The law does not penalize drunk driving a bicycle or a
tricycle. They would still be considered as public hazards.
The recently enacted law states that it is unlawful for any person to drive a
motor vehicle while under the influence of alcohol, dangerous drugs and/or other
similar substances.54 In addition to the prohibition, the new law now adds the
52 California Vehicle Code Sec. 23512, (b)
53 Ibid. Section 3
54 Republic Act 10586, Section 5
30

procedure that allows law enforcement authorities to implement the statute by

allowing a law enforcement officer who has probable cause to believe that a
person is driving under the influence of alcohol, dangerous drugs and/or other
similar substances by apparent indications and manifestations, including
overspeeding, weaving, lane straddling, sudden stops, swerving, poor coordination
or the evident smell of alcohol in a persons breath or signs of use of dangerous
drugs and other similar substances, shall conduct field sobriety tests.55

In addition, if the driver fails in the sobriety tests, it shall be the duty of the
law enforcement officer to implement the mandatory determination of the drivers
blood alcohol concentration level through the use of a breath analyzer or similar
measuring instrument.56
Furthermore, if the law enforcement officer has probable cause to believe
that a person is driving under the influence of dangerous drugs and/or other similar
substances, it shall be the duty of the law enforcement officer to bring the driver to
the nearest police station to be subjected to a drug screening test and, if necessary,
a drug confirmatory test as mandated under Republic Act No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002".
Law enforcement officers and deputized local traffic enforcement officers
shall be responsible in implementing this section.57 The LTO may deputize traffic
enforcement officers of the PNP, the Metropolitan Manila Development Authority
(MMDA) and cities and municipalities in order to enforce the provisions of this
Act.58
55 Republic Act 10586, Section 6
56 Ibid.
57 Ibid.
58 Republic Act 10586, Section 10
31

Under Section 7 of the same law, a driver of a motor vehicle involved in a

vehicular accident resulting in the loss of human life or physical injuries shall be
subjected to chemical tests, including a drug screening test and, if necessary, a
drug confirmatory test as mandated under Republic Act No. 9165, to determine the
presence and/or concentration of alcohol, dangerous drugs and/or similar
substances in the bloodstream or body. The author believes that this section is the
main teeth of the law. In past situations, prior to the signing of Republic Act
10586, drunk drivers get away with this in all impunity. Accidents are blamed to
weather conditions or other made-up stories, when the real culprit is the alcohol
intake. Now, the mandatory test can determine the drivers Blood Alcohol
Concentration and can better serve in the interest of justice. Mandatory testing
brings up constitutional issues that may violate the persons right to selfincrimination especially that the nature of the offense is criminal in nature. The
person cannot be subjected to evidence that would incriminate himself. These
mandatory tests may violate such rights. The right against self-incrimination
covers testimonial compulsion only and the compulsion to produce real or
physical evidence using the body of the accused.
It has been held in the case of US v Tan Teng (23 Phil. 145)
that the taking of a substance from his body was not a violation of the said right.
He was neither compelled to make any admissions or to answer any questions. The
substance was taken from his body without his objection and was examined by
competent medical authority.59

The prohibition of self-incrimination in the Bill of Rights is a prohibition of

the use of physical or moral compulsion to extort communications from him, and
not an exclusion of his body as evidence, when it may be material. It would be the
59 US v Tan Teng, 23 Phil. 145, September 7, 1912
32

same as if the offender apprehended was a thief and the object stolen by him may
be used as evidence against him.60

A driver of a motor vehicle who refuses to undergo the mandatory field

sobriety and drug tests under Sections 6, 7 and 15 of this Act shall be penalized by
the confiscation and automatic revocation of his or her drivers license, in addition
to other penalties provided herein and/or other pertinent laws.61
The problem here is if the driver refuses to take the mandatory breath
analysis test if he fails the field sobriety test invoking his right against
unreasonable search and seizure as guaranteed by the Constitution. The State of
California addresses this problem by implementing the implied consent statute
which would be discussed in the later part of this study. There are questions to be
answered such as would the taking of breath and blood test be exceptions to the
right against warrantless searches? What happens if the driver refuses to take these
tests? These issues would also be tackled along with the analysis of key points of
the study.
The nonprofessional drivers license of any person found to have violated
Section 5 of this Act shall also be confiscated and suspended for a period of twelve
(12) months for the first conviction and perpetually revoked for the second
conviction. The professional drivers license of any person found to have violated
Section 5 of this Act shall also be confiscated and perpetually revoked for the first
conviction. The perpetual revocation of a drivers license shall disqualify the
person from being granted any kind of drivers license thereafter.62
60 Ibid.
61 R.A. 10586, Section 8
62 Ibid.
33

Under this section, it would seem as if the law itself is discriminatory. Only
upon conviction for the second time that a non-professional driver loses his license
and be barred perpetually from driving. A professional driver is not given such
leeway. His license will be confiscated and he will be barred forever from getting
behind the wheel upon the first conviction. We must keep in mind that professional
drivers are those who earn their living driving taxis, buses, delivery trucks, and
other public utility vehicles. We must consider that these drivers earn meager
wages and that their means of livelihood would be impaired if we impose these
harsh penalties upon them. Social justice tells us that those who have less in life
should have more in law.63Non-professional drivers drive their own cars and
therefore, at least in the Philippine context, rich. The promotion of social justice
to insure the well-being and economic security of all the people should be the
concern of the State."64Never it should be about punishing the already
economically punished and rewarding the secure and even the exploiters.

Under Republic Act 10586, each applicant for a motor vehicle drivers
license shall complete a course of instruction that provides information on safe
driving including, but not limited to, the effects of the consumption of alcoholic
beverages on the ability of a person to operate a motor vehicle, the hazards of
driving under the influence of alcohol, dangerous drugs and/or other similar
substances, and the penalties attached for violation thereof. 65 For professional
drivers, every applicant for a drivers license or those applying for renewal thereof
shall undergo the drivers education herein stated.66
63Del Rosario v De los Santos, G.R. Nos. L-20589-90, March 21, 1968
64 Art. II, Section 5, Constitution of the Philippines.
65 Republic Act 10586, Section 4
66 Ibid.
34

The drivers license written examination shall include questions concerning the
effects of alcohol and drug intoxication on the ability of a person to operate a
motor vehicle and the legal and pecuniary consequences resulting from violation
of the provisions of this Act.

Breath Analyzers And Their Reliability

Under Section 6 of the same law, if the driver fails in the sobriety tests, it
shall be the duty of the law enforcement officer to implement the mandatory
determination of the drivers blood alcohol concentration level through the use of
a breath analyzer or similar measuring instrument. The author of this study
questions the similar measuring instrument because if the driver refuses the breath
analyzer test, will he be subjected to a different type of test that would determine
his blood alcohol concentration? A blood test or a urine test will serve as other
options for the driver that has been arrested for drunk driving.
In California, breath analysis is by far the most commonly used method of
testing for blood alcohol in DUI cases. Although not as accurate or reliable as
blood tests, it has generally been regarded as acceptably accurate for use in DUI
investigations, if administered correctly. This regard is beginning to erode,
however. An example of this is the comment of Dr. Michael Hiastala, Professor of
Physiology, Biophysics and Medicine at the University of Washington:
Breath testing, as currently used, is a very inaccurate method for
35

measuring BAC. Even if the breath-testing instrument is working perfectly,

physiological variables prevent any reasonable accuracy.... Breath testing
for alcohol using a single test method should not be used for scientific,
medical or legal purposes where accuracy is important. [Hiastala,
Physiological Errors Associated with Alcohol Breath Testing, 9(6) The
Champion 19 (1985).]67
A number of scientists who have conducted studies of breath-alcohol
analysis have concurred with Dr. Hiastala in concluding that breathalyzer accuracy
is inherently unreliable. A study conducted by experts determined that breath
readings vary at least fifteen percent from actual blood alcohol levels.68 The breath
analysis test is unable to distinguish alcohol from other chemicals; its results are
often unreliable.
In some cases, substances such as acetone and acetaldehyde, which are
common compounds found in a persons breath, can be easily mistaken for
alcohol. Many common medical disorders are also known to affect a persons
breathalyzer results. If you have diabetes or suffer from acid reflux disease, for
example, your BAC may be inflated. Fasting, low-carb diets, smoking, or even
using products such as breath mints or gum, can also produce inaccurate test
results.If you were recently arrested for DUI after failing a California breathalyzer,
it is important to discuss your results with an attorney immediately. Research
suggests that at least 15% of all breathalyzer tests are inaccuratewhich means
its very likely that your results could be unreliable as well.69
67DUI Breathalyzer Accuracy. http://www.duicentral.com/evidence/breathalyzeraccuracy/2/
68Simpson, Accuracy and Precision of Breath-Alcohol Measurements for a Random
Subject in the Postabsorptive State, 33(2) Clinical Chemistry 261 (1987)
69California Breathalyzer,
http://www.californiaduipenalties.net/californiabreathalyzer.html (2013)
36

The reliability of breath measuring devices raises due process and equal
protection issues.
California adopts an Implied Consent Law, you are required to submit to
a breathalyzer or other chemical test if an officer suspects you of driving under the
influence.70
Said provision states that, A person who drives a motor vehicle is deemed
to have given his or her consent to chemical testing of his or her blood or breath
for the purpose of determining the alcoholic content of his or her blood, if lawfully
arrested for an offense allegedly committed in violation of Section 23140, 23152,
or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of
subdivision (d) applies.71
The law also states that a person who drives a motor vehicle is deemed to
have given his or her consent to chemical testing of his or her blood for the
purpose of determining the drug content of his or her blood, which testing shall be
incidental to a lawful arrest and administered at the direction of a peace officer
having reasonable cause to believe the person was driving a motor vehicle in
violation of the law on drunk driving.72
In the United States, at least one court has even reversed DUI convictions
on the grounds that breath analyzer accuracy is inherently unreliable.73 In one of
the cases brought before it, the New Jersey Superior Court, Law Division,
considered the consolidated appeals of four DUI defendants whose convictions
involved Breathalyzer tests. Although noting that the New Jersey Supreme Court
had essentially taken judicial notice that the Breathalyzer models "900 and 900A
70 California Vehicle Code, Section 23612
71 Ibid.
72 Ibid.
73State v. McGinley, 550 A.2d 1305 (NJ. Super. 1988)
37

are scientifically reliable," the court nevertheless felt free to consider new
scientific evidence not previously available - evidence based in large part on the
work of Dr. Kurt Dubowski:
The scientific evidence upon which the defendants rely shows the
following: (1) The breathalyzer is designed to test persons having a 2100/1 bloodbreath ratio. Such ratios in fact vary from 1100/ 1 to 3200/i and the variance can
produce erroneous test results. High readings are produced in 14% of the
population. (2) The temperature of the machine itself varies, affecting test results.
(3) Body temperatures vary, affecting test results. (4) Hematocrit (the solid
particles in whole blood) levels vary, particularly between males and females,
affecting test results. These sources of error make breathalyzer test results suspect
and, to insure reliability, require the substantial reduction of blood-alcohol
percentages based on a translation of those results. The leading expert in the field,
recognized as such by both State and defense, is of the opinion that the reduction
should be .055.74
In another study, conducted by members of the toxicology section of the
Wisconsin State Laboratory of Hygiene, only 33 percent of the breath test results
correlated with corresponding blood tests. The study involved a survey of 404
actual drunk driving cases in Wisconsin in which DUI defendants had been tested
on a Breathalyzer (either the Model 900 or 900A) as well as by blood analysis. 75
The two tests were considered to correlate when there was a difference of .01
percent or less.

74 Ibid.
75Reported in 32(4) Journal of Forensic Sciences 1235 (1987),
38

One interesting aspect of the study was that in 11 of the DUI cases, the
defendant was shown to be intoxicated using one of the tests but not intoxicated
when using the other.76
The author of the study concluded that, "given the choice, it would seem
that if a conclusion is to be made about the BAC of a random subject, especially
when the conclusion can have serious consequences, it would be far preferable to
make it on the basis of a direct blood measurement."
The California Court of Appeals discussed the issue on the reliability of these
breath analyzer tests on a case.77 This case was published because it addressed a
new challenge to the constitutionality of Californias new drunk driving law.
Before this new law passed, the test to determine whether or not a person was
driving under the influence of alcohol was the level of alcohol in his blood. The
new law sets the concentration in the drivers breath is the new test.
Breath testing for measuring alcohol concentration in the blood was challenged
because of conversion problems. Before the new test, Californias drunk driving
law provided that a person was drunk and could not drive a vehicle, if the amount
of alcohol concentration in his blood was 0.08 percent or more, by weight. Direct
blood test determined the persons level of alcohol concentration in the blood. The
new test provides for a different basis of measurement. The breath analyzer does
not measure the amount of alcohol concentration in a persons blood, but in his
breath. Blood is liquid, but breath is vapor. How much concentration of alcohol in
a persons breath is equivalent to 0.08 percent concentration in his blood? Science
has not yet provided an exact answer. So if science has not settled the question,
then, the argument goes, breath testing is not a scientifically reliable basis for
76 Ibid.
77 People v Ireland, 33 Cal. App. 4th 680
39

determining whether a person is drunk for purposes of drunk driving law. 78 This
issue is discussed further.
The pertinent facts of the case were that Police Office Philip Wowak
stopped the defendant because he observed the defendant speeding and following
too closely. As the officer approached the van, defendant driver rolled down the
window. The officer smelled the odor of alcohol coming from inside the vehicle.
He noticed that defendants speech was slurred, his eyes were very bloodshot, and
his movements were very slow and deliberate when retrieving his wallet and
drivers license. Wowak conducted a field sobriety test as part of standard
procedure. Defendant failed the test and he was arrested for driving under the
influence. Wowak advised defendant that he had the choice of blood, breath, or
urine test. Defendant chose the breath alcohol test. The officer conducted two tests
at a one minute interval and the results showed alcohol concentrations of 0.11
percent and 0.10 percent respectively. Wowak advised defendant he could choose
another test at no charge but defendant declined to do so. The state presented as its
expert witness criminalist with the Department of Justice who reviewed the
accuracy logs of the machine, which was used for the test and concluded that the
instrument was operating properly on the date of defendants test. He explained
that the 2100:1 breath-to-blood conversion ratio is determined from correlation
studies wherein blood samples drawn from an individuals arm are compared to
breath samples taken from that certain individual. He further explained that the
2100:1 ratio represents the parts of alcohol found in the breath compared to the
parts of alcohol found in the blood drawn from the arm.
Defendants expert witness, William Gigiere, explained the basis of the 2100:1
alcohol in breath to alcohol in blood ratio. He testified that alcohol is first
absorbed into the artery and then gets distributed all over the body. The
78Maxino, Marcelino C., Cases and Issues for Philippine Comparative Study (2004), p.
143
40

neurological effects of alcohol are the results of the alcohol coming in contact with
the brain, which is the control center of the body. Alcohol reaches the veins after
peak absorption. At peak absorption, the arterial value of alcohol is equal to its
venous value from a practical standpoint. Prior to peak absorption, the amount of
alcohol in the artery, which is reflected by the breath test, will be greater than the
amount of alcohol in the veins which is accordingly represented by the blood test.
Consequently, the 2100:1 statutory partition ration will be overstated during the
absorptive phase and understated during the post-absorptive phase.
The court upheld the accuracy of the breath analysis test but it considered
the complexities of converting breath alcohol values to blood alcohol values. In
1990, there was an Assembly Bill No. 4318 sought for the purpose of eliminating
the need for conversion of a breath quantity to a blood concentration of alcohol by
statutorily defining driving under the influence of alcohol in terms of the
concentration of alcohol found in the breath when breath analysis was used. 79 The
committee also explained that the complexities of the existing conversion or
partition ratio result in a significant number of cases being challenged on the
accuracy of the said conversion ratio. 80 The intent of the assembly was clear in
eliminating the conversion and instead alternatively define driving under the
influence in terms of the concentration of alcohol found in the breath when breath
analysis is used. The California Supreme Court held that there is only one
reasonable manner in which to define the amendment and that it is the intent of the
Legislature to criminalize the act of driving either with the specified blood-alcohol
concentration or with the specified breath-alcohol concentration.81

79 Assembly Com. On Public Safety, May 15, 1990 hearing

80 Ibid.
81 People v Bransford (1994), 8 Cal. 4th 885, 890
41

The court stated that in the Ireland case82 that there is no requirement of
computing the quantitatively equivalent to the 0.08 percent alcohol content in the
blood. The Legislature was aware of the complexities of converting breath-alcohol
values to blood-alcohol values and it was because of these complexities that the
Legislature decided to eliminate the conversion requirement, accepting as
sufficient for defining legislative policy a prohibition on driving based on the
presence in a persons breath of a certain amount of alcohol.
Due to the power of the Legislature to regulate driving, it is beyond
constitutional challenge. It is within the states police power to enact any measure
which reasonably relates to public health or safety operates with full force in this
domain.83
The court acknowledged the fact that the current state of scientific
knowledge has not settled the ongoing scientific debate as to the best method of
measuring inebriation does not preclude the Legislature from regulating driving
based on conflicting scientific theories. Where scientific opinions conflict on a
particular point, the Legislature is free to adopt the opinion it chooses, and the
court will not substitute its judgment for that of the Legislature. 84 The court went
further in stating that the courts cannot arbitrate scientific disputes.85
Although some experts have endorsed breath alcohol level test as a reliable
measure of the amount of alcohol affecting the brain, other experts question the
reliability of the breath tests.
In one case decided by the New Jersey court, the court held that in light of
scientific and legislative evidence, we find unpersuasive argument that blood
82 Ibid. 44
83 Hernandez v DMV (1981) 30 Cal. 3d 70, 74
84 State v Brayman, (1988) 751 P.2d 294, 300
85 People v Lepine, (1988) 215 Cal. App. 3d, p 100
42

should be the sure and ultimate measure of inebriation. Blood, itself is not
monolithic. Venous blood differs from the arterial blood, which actually takes
alcohol to the brain. Venous blood may be far less accurate as an indication of the
amount of alcohol affecting the brain than breath in the absorptive phase. Given
the fact that the legislature desired to bar driving while intoxicated, it appears
logical that the blood contemplated was the arterial blood, which takes alcohol to
the brain. Because arterial blood is practically unobtainable, then, breath, not
venous blood, is the most consistently accurate reflection of the concentration of
alcohol affecting the brain. Thus, the legislative and judicial reference to blood is
not an intended concession that blood tests are the preferred method for
ascertaining inebriation.86
In California, the Legislature decided to adopt both breath and blood tests
and to allow their use on an alternative basis. However, the statute in allowing
breath test did not presume that the driver was intoxicated or under the influence,
but instead it defined the substantive offense of driving with a specified
concentration of alcohol in the body and it did not create an irrefutable conclusive
presumption.87
Again, whether the course chosen by the Legislature is sound or not, it is
for the courts to review. The wisdom of the legislation is not at issue in analyzing
the constitutionality and neither the availability of less drastic remedial
alternatives nor the legislative failure to solve all related ills at once will invalidate
a statute.88
Concerning the new law on drunk driving in the Philippines (R.A. 10586),
it only uses breath analyzers or other similar device in measuring a persons
86 State v. Downie (N.J. 1990), 569 A. 2d 242, 250
87 People vsBransford (1988), 8 Cal. 4th 885, pp 892-893
88 Hale v. Morgan (1978), 22 Cal. 3d 388, 398
43

intoxication level. Other similar device in a sense is too broad and we would have
to wait for the Implementing Rules and Regulations to specify the other similar
devices mentioned in the statute.
As discussed earlier in this study, the reliability of the breath analyzers
could pose a serious problem because of the criminal nature of the law. A driver
found to have been driving a motor vehicle while under the influence of alcohol,
dangerous drugs and/or other similar substances, as provided for under Section 5
of this Act, shall be penalized accordingly to the degree of the gravity of the
offense.

It sets more serious penalties if the violation of the drunk driving law
resulted in physical injurie or homicide. If the violation did not result in physical
injuries or homicide, the penalty of three months imprisonment, and a fine ranging
from twenty thousand pesos (Php20,000.00) to eighty thousand pesos
(Php80,000.00) shall be imposed.89

Due to the criminal nature of the offense, the degree of proof required to
convict a violator of the drunk driving law is that beyond reasonable doubt. In a
criminal case, the accused is entitled to an acquittal, unless his guilt is shown
beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces absolute certainty.
Moral certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind.90 The test results of the breath analysis may
be admitted in evidence but the weight of its probative value would be in question.
89 R.A. 10586, Section 12
90 Rules on Evidence, Rule 133, Section 2
44

Also discussed earlier in this legal study, test results from breath analysis
only create a arguable presumption and may be disputed by other evidence that
challenges the accuracy and the reliability of the test results. Evidence may be
admitted that discusses the factors that can affect breathalyzer accuracy. All the
same, one should always be aware that a breathalyzer is a machine that can be
influenced by outside factors if the user is not shrewd.
There are a few factors than can potentially cause errors in breath analysis:
(1) Substances present in the mouth that contain alcohol can produce false
positives because the amount of alcohol vapor they emit may be greater than the
amount exhaled from the lungs. For example, some mouthwashes, breath
fresheners, and toothache medicines contain alcohol and can skew readings; (2)
Breathalyzers must be calibrated periodically and batteries must be replaced in
order to maintain accuracy; (3) Breathalyzers run on special software, just as
computers rely on operating systems, which can result in occasional bugs and
glitches; (4) As easy as breathalyzers are to use, they still require some attention to
detail; (5)To ensure accuracy, breath tests should be performed multiple times to
produce a reliable result. Breathalyzers that utilize fuel cell sensor technology
provide the most reliable and accurate results in repeated tests; (6) False results
can be triggered by the presence of paint fumes, varnish, and chemicals such as
plastics and adhesives.91

This legal issue regarding the reliability and accuracy of breath analyzers
are apparent on the account of the Implementing Rules and Regulations has not
been released. In the United States, particularly the State of California, they allow
91BACtrack: Are breathalyzers accurate?, http://www.bactrack.com/pages/arebreathalyzers-accurate
45

the drivers to choose between blood, breath, or urine test. If they do not agree
with the reliability of the accuracy of the breath testing, they may opt to select an
alternative test to determine the level of alcohol in their system. Since the
Philippine drunk driving law does not provide for such option, this may be an
problem later on when the law will be implemented that the authorities may have
to address. Grounded on the words of R.A. 10586, there are quite a number of
issues that may arise that has been already addressed in other jurisdictions.
Questions would arise on whether the Philippines is ready for such law.

Blood Testing and the Right to Warrantless Searches

A noteworthy issue with regard to blood testing is the citizens right against
warrantless searches. The right of the individual has to be balanced with the
interest of the state. In the United States, the aforementioned issue is discussed and
the Supreme Court Justices were divided in the ruling of this case. 92 The dissenting
opinions of Chief Justice Roberts and Justice Thomas had really strong points of
92Missouri v McNeely, 569 U. S. ____ (2013)
46

argument.
The principle that a warrantless search of the person is reasonable only if it
falls within a recognized exception,93 applies here, where the search involved a
compelled physical intrusion beneath McNeelys skin and into his veins to obtain a
blood sample to use as evidence in a criminal investigation. One recognized
exception applies when the exigencies of the situation make the needs of law
enforcement so compelling that a warrantless search is objectively reasonable. 94
The United States Supreme Court looks to the totality of circumstances in
determining whether an exigency exits.95 Applying this approach in Schmerber,96
the Court found a warrantless blood test reasonable after considering all of the
facts and circumstances of that case and carefully basing its holding on those
specific facts, including that alcohol levels decline after drinking stops and that
testing was delayed while officers transported the injured suspect to the hospital
and investigated the accident scene. However, the facts of the Schmerber case are
different from the current case of McNeely. In this case, respondent McNeely was
stopped by a Missouri police officer for speeding and crossing the centerline. After
declining to take a breath test to measure his blood alcohol concentration (BAC),
he was arrested and taken to a nearby hospital for blood testing. The officer never
attempted to secure a search warrant. McNeely refused to consent to the blood test,
but the officer directed a lab technician to take a sample. McNeelys BAC tested
well above the legal limit, and he was charged with driving while intoxicated.
He moved to suppress the blood test result, arguing that taking his blood
without a warrant violated his Fourth Amendment rights.
93United States v. Robinson, 414 U. S. 218, 224
94Kentucky v. King, 563 U. S.
95Brigham City v. Stuart, 547 U. S. 398, 406
96Schmerberv. California, 384 U. S. 757
47

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.97
The trial court agreed, concluding that the exigency exception to the
warrant requirement did not apply because, apart from the fact that McNeelys
blood alcohol was dissipating, no circumstances suggested that the officer faced an
emergency. The State Supreme Court affirmed, relying on Schmerber v.
California, in which this Court upheld a drunk driving suspects warrantless blood
test where the officer might reasonably have believed that he was confronted with
an emergency, in which the delay necessary to obtain a warrant, under the
circumstances, threatened the destruction of evidence. This case, the state court
found, involved a routine drunk driving investigation where no factors other than
the natural dissipation of blood alcohol suggested that there was an emergency,
and, thus, the nonconsensual warrantless test violated McNeelys right to be free
from unreasonable searches of his person. The US Supreme Court affirmed the
judgment with strong dissenting opinions from a few justices.
The court herein concluded that in drunk-driving investigations, the natural
dissipation of alcohol in the bloodstream does not constitute an exigency in every
case sufficient to justify conducting a blood test without a warrant. The State
nonetheless seeks a per se rule, contending that exigent circumstances necessarily
exist when an officer has probable cause to believe a person has been driving
under the influence of alcohol because Blood Alcohol Concentration evidence is
inherently passing. Even though a persons blood alcohol level declines until the
alcohol in his body is completely eliminated, it does not follow according to the
court that it should depart from the careful case-by-case assessment of the said
97Official Bill of Rights in the National Archives, US Constitution
48

exigency. There should be a thorough examination on the circumstances of the

case and the per se rule should not be taken sweepingly without qualifications.
Situations may arise that would make obtaining a warrant impractical such
that the alcohols dissipation will support an exigency. However, the investigating
officer should always consider each circumstance and not accept the considerable
overgeneralization that the per se rule that the state seeks.98
Blood testing is different in critical respects from other destruction of
evidence cases because the suspect does not have control to easily dispose of the
evidence which is in his blood.99 BAC evidence naturally dissipates in a gradual
and relatively predictable manner. It has been held that that as a result of the
human bodys natural metabolic processes, the alcohol level in a persons blood
begins to dissipate once the alcohol is fully absorbed and continues to decline until
the alcohol is eliminated. 100
Expert testimony before the trial court in the McNeely case indicated that
the percentage of alcohol in an individuals blood typically decreases by
approximately 0.015 percent to 0.02 percent per hour once the alcohol has been
fully absorbed. 101
A more precise calculation of the rate at which alcohol dissipates depends
on various individual characteristics (such as weight, gender, and alcohol
tolerance) and the circumstances in which the alcohol was consumed. 102

98Richards v. Wisconsin, 520 U. S. 385, 393

99Cuppv. Mur- phy, 412 U. S. 291, 296
100Skinner, 489 U. S., at 623; Schmerber, 384 U. S., at 770-771
101 Ibid.
102Stripp, Forensic and Clinical Issues in Alcohol Analy sis, in Forensic Chemistry
Handbook 437441 (L. Kobilin sky ed. 2012).
49

Regardless of the exact elimination rate, it is sufficient for our purposes to

note that because an individuals alcohol level gradually declines soon after he
stops drinking, a significant delay in testing will negatively affect the probative
value of the results. This fact made the court hold the ruling in the Schmerber case
because the delay in securing a warrant after the time spent investigating the scene
of the accident and transporting the injured suspect to the hospital to receive
treatment would have threatened the destruction of evidence. 103 The natural
decrease of the level of alcohol in the blood may support an exigency finding in a
specific case but it does not do so categorically.
As mentioned earlier, the author agrees with the US Supreme Court that in
drunk-driving investigations, the natural dissipation of alcohol in the bloodstream
does not constitute an exigency in every case sufficient to justify conducting a
blood test without a warrant. 104There must be a consideration of the circumstances
on a case-by-case basis in order for the arresting officer to conduct a warrantless
blood test on the suspected drunk driver.
United States Supreme Court Justice Thomas, in his dissenting opinion
avers that the Court elides the certainty of evidence destruction in drunk-driving
cases and focuses primarily on the time necessary for destruction. In doing so, it
turns the exigency inquiry into a question about the amount of evidentiary
destruction police must permit before they may act without a warrant. That inquiry
is inconsistent with the actual exigency at issue: the uncontested destruction of
evidence due to metabolization of alcohol. 105 He believed that the majority of the
Justices consider that, absent special facts and circumstances, some destruction of
evidence is acceptable. Justice Thomas asserts that the majority is clearly mistaken
103 Ibid. p 45
104 Ibid.
105Ibid.
50

in their assumption that whatever evidence remains once a warrant is obtained will
be sufficient to prosecute the suspect.
Justice Thomas further discussed that the Court did not explain how an
officer in the field is to apply the facts and circumstances test it adopts and that the
officer has no control on how long it would take to acquire the necessary warrant
to be issued by the judge based on the determination of probably cause.106
Under a totality of the circumstances test, an officer would be called upon
to speculate on each of these considerations and predict how long the most
probative evidence of the defendants blood alcohol level would continue to exist
before a blood sample was no longer reliable. 107
The dissenting opinion of US Supreme Court Chief Justice Roberts is
persuasive in stating that the circumstances in drunk driving cases are often
typical, and the Court should be able to offer guidance on how police should
handle cases like the case at bar. Chief Justice Roberts further iterated that in his
view, the proper rule is straightforward. The cases establish that there is an exigent
circumstances exception to the warrant requirement. That exception applies when
there is a compelling need to prevent the imminent destruction of important
evidence, and there is no time to obtain a warrant. The natural dissipation of
alcohol in the bloodstream constitutes not only the imminent but ongoing
destruction of critical evidence.108
Chief Justice Robertss solution properly recognizes that any delay in the
blood test will result in the loss of evidence.

In addition, his opinion

accommodates the majoritys concern, and it acknowledges that seeking a warrant

106 MISSOURI v. MCNEELY THOMAS, J., dissenting
107 State v. Shriner, 751 N. W. 2d 538, 549 (2008) .
108 Missouri v McNeely, supra, dissenting opinion of CJ Roberts
51

in these circumstances does not always occasion a delay in the search.

By contrast, the majoritys approach offers officers virtually no guidance
at all, but states only that, in those drunk-driving investigations where police
officers can reasonably obtain a warrant before a blood sample can be drawn
without significantly undermining the efficacy of the search, the Fourth
Amendment mandates that they do so. Such an unclear directive, perhaps
ironically, may significantly undermine the efficacy of the majoritys opinion.109
The Chief Justice opined that dissipation of alcohol in the body would
qualify as an exigent circumstance, except that there may be time to secure a
warrant before blood can be drawn. If there is, an officer must seek a warrant. If an
officer could reasonably conclude that there is not, the exigent circumstances
exception applies by its terms, and the blood may be drawn without a warrant.
The language of the Fourth Amendment does not state that warrants are
required prior to searches, but the court has long held that warrants must generally
be obtained.110 Moreover, the court has also held that bodily invasions like blood
draws constitute searches and are subject to the warrant requirement. 111
Nevertheless,

the

reasonableness,

112

ultimate

touchstone

of

the

Fourth Amendment

is

and therefore the warrant requirement is subject to certain

reasonable exceptions,

113

. One of those exceptions is known as the exigent

circumstances exception, which applies when the exigencies of the situation

make the needs of law enforcement so compelling that a warrantless search is

109 Sherry Colb, The U.S. Supreme Court Rules That Blood Tests for Drunk Driving
Suspects Require a Search Warrant: A Wise Decision?
110Kentucky v. King, 563 U. S.(2011)
111Schmerber v. California, 384 U. S. 757, 767, 770 (1966).
112Brigham City v. Stuart, 547 U. S. 398, 403 (2006)
113 Ibid., 67
52

reasonable under the Fourth Amendment. 114

Requiring police to apply for a warrant if practicable increases the
likelihood that a neutral, detached judicial officer will review the case, helping to
ensure that there is probable cause for any search and that any search is
reasonable.115The Court has already held that forced blood draws can be
constitutionalthat such searches can be reasonable but that does not change
the fact that they are significant bodily intrusions. 116Requiring a warrant whenever
practicable helps ensure that when blood draws occur, they are indeed justified. 117
There are certain exigent circumstances that have been identified by the
courts that do away with the warrant requirement. In the United States, it has been
held that there is an emergency aid exception to the warrant requirement. Another
exception is the hot pursuit exception to warrant requirement.118
But we must consider that in many cases, there might, therefore, be time to
obtain a warrant. Police officers can often request warrants rather quickly these
days.119 At least thirty states in the United States provide for electronic warrant
applications. In many States, a police officer can call a judge, convey the
necessary information, and be authorized to affix the judges signature to a
warrant.120
114 Ibid.
115 Missouri v McNeely, Opinion of CJ Roberts
116Schmerber, 384 U. S., at 770
117 Ibid.
118United States v. Santana, 427 U. S. 38 (1976); War- den, Md. Penitentiary v. Hayden,
387 U. S. 294 (1967),
119 Ibid.
120Ala. Rule Crim. Proc. 3.8(b) (20122013); Alaska Stat. 12.35.015 (2012); Idaho
Code 194404, 194406 (Lexis 2004); Minn. Rules Crim. Proc. 36.0136.08 (2010
53

One state in the United States has an e-warrant procedure where a police
officer enters information into a system, the system notifies a prosecutor, and upon
approval the officer forwards the information to a magistrate, who can
electronically return a warrant to the officer. 121 Judges have been known to issue
warrants in as little as five minutes.

122

In Kansas, the police officers can e-mail

warrant requests to judges; judges have signed such warrants and e-mailed them
back to officers in less than fifteen minutes. 123 The police are presumably familiar
with the mechanics and time involved in the warrant process in their particular
jurisdiction.124These models of securing a warrant in minutes is not applicable in
the Philippines for the main reason that our laws have not provided the police the
aforementioned procedure in securing a warrant electronically. Feasibly, as
mentioned the Philippines is still a developing country and that manner of securing
a warrant is costly. Having said that, it would be very difficult for the Philippines
to adopt the electronic application and issuance of a warrant.
In a time in which the Court seems to be regularly announcing inroads on
existing constitutional protections, the McNeely decision holds the line and says
that we will not have an across-the-board exception to the warrant requirement for
a particular class of criminal evidence: BAC of drunk drivers.125 Rather, to rely
and Supp. 2013); Mont. Code Ann. 465222 (2012).
121Utah, e-Warrants: Cross Boundary Collaboration 1 (2008).
122Bergreen, Faster Warrant System Hailed, Salt Lake Tribune, Dec. 26, 2008, p. B1,
col. 1.
123Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, 9 Kansas Prosecutor 17,
18 (Spring 2012).
124 Ibid., McNeely
125 Sherry Colb, The U.S. Supreme Court Rules That Blood Tests for Drunk Driving
Suspects Require a Search Warrant: A Wise Decision?
http://verdict.justia.com/2013/05/15/the-u-s-supreme-court-rules-that-blood-tests-fordrunk-driving-suspects-require-a-search-warrant#sthash.fqiAVuTK.dpuf, (2013)
54

on exigent circumstances, police must demonstrate a genuine emergency that

they confront in the individual case, regardless of whether such cases in general
create an exigency.
As a result of this decision, moreover, it seems that people who could
otherwise be wrongfully subjected to unjustified blood tests might be spared,
because a magistrate can reject the officers potentially overzealous perceived need
to collect evidence.126

Implied Consent and Refusal

In the case of Missouri v. McNeely, as discussed in the previous topic, the
United States Supreme Court held that police must normally get a warrant before
taking a non-consensual blood sample to test a driver's blood alcohol level. The
decision could have a major impact on the way that police obtain blood samples. It
could also create problems for implied consent laws that are essential to drunk
driving prosecution in all fifty states.127
Although all states in the United States have an implied consent law, search
warrants must first be secured in order to conduct blood tests from the driver
126 Ibid.
127 http://harmlesserrorblog.blogspot.com/2013/04/missouri-vmcneely-implied-consent-refusal.html
55

arrested for drunk driving. According to Justice Sotomayor, The implied consent
laws require motorists, as a condition of operating a motor vehicle within the
State, to consent to BAC testing if they are arrested or otherwise detained on
suspicion of a drunk-driving offense. Such laws impose significant consequences
when a motorist withdraws consent; typically the motorists drivers license is
immediately suspended or revoked, and most States allow the motorists refusal to
take a BAC test to be used as evidence against him in a subsequent criminal
prosecution.128

Applicability in the Philippine Setting

The Philippines can adopt the implied consent law of other states by
incorporating it in our drunk driving law, in order to substantiate the power of the
state to conduct chemical tests from drivers who are arrested of drunk driving.
Amendments must be made on the current law to implant such provision. The
Philippines may adopt some provisions of the California Implied Consent Law,
which is attached in the appendix.
The principles established in the United States regarding blood testing in
relation to the right of the people against unreasonable searches would be
applicable in the Philippines for our constitutional rights against the same is
similar to that of our American counterpart. Under Philippine law, The right of
the people to be secured in their persons, houses, papers, and effects against
128 Ibid.
56

unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witness he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.129
The search and seizure clause in the Philippine Constitution has two parts.
The first prohibits unreasonable search and seizure and the second one embraces
the requirements for a valid warrant. 130
However, the Philippine Supreme Court recognizes exceptions to the
warrantless search requirements. They are the following; (1) search incidental to
an arrest, (2) search of moving vehicles, (3) seizure of evidence in plain view, (4)
custom searches, and (5) where there is waiver of the right. 131 A rare exception
recognized is the rule on exigent circumstance and the stop and frisk rule. 132 The
rare case of allowable warrantless search of the doctrine of exigent
circumstances was applied in the Philippines in the case of People v
DeGracia133The Court considered the circumstances of the case in determining the
exigent circumstance and the exception to the rule on search warrant requirement.
However the present rule is clear, for exigent circumstances to justify a
warrantless search, however, there must also be no time to secure a warrant. In
129 Philippine Constitution (1987), Bill of Rights, Sec. 2
130 Ibid.
131Bernas, Joaquin Fr., The 1987 Constitution of the Philippines, A Commentary
(2010), p. 184.
132Ibid.
133 G.R. No. 102009-10, July 6, 1994.
57

this respect, obtaining a blood sample from a suspected drunk driver differs from
other exigent circumstances cases.
Under the new drunk driving law the DOTC, the DOH and the
NAPOLCOM shall, within three (3) months from the effectivity of this Act, jointly
promulgate the necessary implementing rules and regulations to carry out the
provisions of the Act.134
In addition, the LTO shall, after five (5) years from the effectivity of this
Act and every five (5) years thereafter, review the applicability and enforcement of
all foregoing pecuniary penalties and shall initiate amendment and/or upgrade the
same as may be necessary, subject to the approval of the Secretary of the DOTC. 135
This is necessary for the improvement of the enacted law because the true
test for future policy makers is to be able to channel the current focus on drunk
driving into a search for innovative strategies. The current strategies will
undoubtedly have some beneficial effect on driving behavior, but until we are able
to find the correct mix of strategies to minimize the societal costs of drunk driving.

Republic Act 10586 incorporates within its sections the provision that
within four months from the effectivity of the Act, the Land Transportation Office
(LTO) and the Philippine National Police (PNP) shall acquire sufficient breath
analyzers and drug-testing kits to be utilized by law enforcement officers and
deputized local traffic enforcement officers nationwide giving priority to areas
with high reported occurrences of accidents.136 The law discusses on acquiring
breath analyzers and drug-testing kits that would be necessary in implementing the
said law. The Legislature must consider that economic situation of the country as it
134 Republic Act 10586, Section 17
135 Republic Act 10586, Section 15
136 Republic Act 10586, Section 9
58

is considered as a developing country and that said equipments are costly as an

average breathalyzer would cost around $75-$80.137 There may be cheaper ones
but the reliability and accuracy of the lesser qualitiy breath analyzers are quite
minimal.138

Section 9 of Republic Act 10586 also discusses the additional yearly

appropriations for the purchase of breath analyzers and drug-testing kits, which
shall be provided annually under the General Appropriations Act. The author is on
the view that the Philippines is not ready for such appropriations due to its
economic condition.

CHAPTER IV
Conclusion
California drunk driving laws have developed into the system it is today. It is
structured and coordinated as compared to its early legislation in 1911. Decades of
experience on the results of legislation has enabled the state to create a thorough
rule on the matter of drunk driving it is in the present. The Legislature has
provided remedies for most of the possible situations that would result from the
implementation of the drunk driving statutes. As discussed in Chapter III, the
major problem areas in this field have been addressed by the State of California
and the Federal Government of the United States. The judiciary furthermore
developed the drunk driving laws with the decisions they have rendered in the
137 Breathalyzer Testers and Portable Breathalyzers, http://www.breathalyzer.net
138 Ibid.
59

interpretation of the statutes invoked in the cases filed before them.

A comprehensive drunk driving law is long overdue in the Philippines. The
clear intent of the law is to keep drunk drivers off the road. Anyone who may
attempt to challenge the extent of the law will be facing harsh fines and penalties
and the possibility of going to jail for a period of time for committing the prohibit
act. The law may be harsh, but that is the law. There is a purpose why the law has
been enacted by the state, and that is to provide a safer motorway to the general
population. It would be a viable solution on the issue regarding the insufficiency
of the current law penalizing driving under the influence of alcohol in the
Philippines as long as its Implementing Rules and Regulations would not render
the said law to be unconstitutional.
California drunk driving laws are way ahead of our current law in terms of
its progress. It is clear, that our law is very primitive and needs to be more specific
and comprehensive as evidence to it being contained in just to provisions of
Republic Act No. 4136. The current law (Republic Act 10586) hopefully addresses
this concern and positively in someway resolve our problems in the field of traffic
management and roadside safety.
As in the case of early California drunk driving laws, this novel law in the
Philippines can best be summarized as a "wait-and-see" strategy.139 The
Legislature prescribed general definitions of the prohibited conduct and awaited
the results. Until the effects and results of the current enacted law would be
apparent, the Legislature will have to have on which aspects to amend. As time
will pass and the potential defects of the law will be revealed, the Legislature will
make refinements to the statutes. The Land Transportation Office and other
government agencies are currently active drafting the implementing rules and
regulations (IRR) for the public rollout of Republic Act 10586 or the "Anti-Drunk
139 Ibid. 17, p. 2
60

and Drugged Driving Act of 2013." The Implementing Rules and Regulations
currently being drafted will measure and determine the workability and
attainability of the newly enacted Republic Act. As the author questioned in the
earlier part of this study, are these administrative agencies vested with such
authority to set the threshold and defining the punishable act?

Recommendations
A police officer having probable cause that a person operating a motor

vehicle under the influence of alcohol by observing manifestations of intoxication

as discussed earlier can ask that person to pull over for a mandatory field sobriety
test under Section 6 of Republic Act 10586. If the individual fails the tests
conducted by the officer, the law provides that the officer will conduct a
mandatory breath test to determine the drivers BAC in order to charge him of
drunk driving. Now, the problem arises if the individual refuses to take the breath
test invoking his constitutional right against warrantless searches. What happens
now?
The author recommends that the Philippines should shadow the California
Implied Consent Law. The full text of this law is attached in the appendix portion
of this study. Amendments to Republic Act 10586 must be done in order to
61

implement the implied consent doctrine. The Philippines would adopt a provision
which stipulates that a person who operates or drives a motor vehicle is deemed to
have given his or her consent to chemical testing of his or her blood or breath for
the purpose of determining the alcoholic content of his or her blood if lawfully
arrested for an offense allegedly committed in violation of the drunk driving law.
By using state roads, drivers consent to mandatory test and this would aid in
prosecution of drunk-driving offenses. As discussed in the earlier part of this
study, drivers could refuse the police request for a chemical test analysis and
would render the law useless. Chemical tests include breath, blood and urine tests
as provided by the proposed implied consent law. The proposed implied consent
law by the author can be applied in the Philippines without being unconstitutional.
The use of public roads and driving in general is a privilege and not a right.
License holders guilty of any violation made against the provisions set by the
Land Transportation Office are subjected to confiscation, suspension or revocation
of their Drivers License depending on the gravity of their offence. This privilege
is granted by the Philippine Government through the Land Transportation Office
based on the Republic Act No: 4136 and Batas Pambansa No: 298.
The proposed Implied Consent provision provides for chemical testing on
drivers and gives them an option for blood or breath testing. If the driver refuses a
breath test analysis to be conducted by the officer, he may opt for blood testing. In
the case of McNeely discussed in the earlier chapter of this paper, the driver
refused blood testing because such type of testing penetrates the skin and actually
invades the human body. The individual refused to take blood test invoking his
constitutional right against warrantless searches and the US Supreme Court ruled
that a search warrant must first be secured prior to the blood testing of the driver
suspected of drunk driving. The prosecution argued that it should be considered as
an exception to warrantless searches as an exigent circumstance doing away of the
requirement of a search warrant to be issued by a judge based on probable cause
62

for blood testing to be conducted. In arguing that BAC of the drunk driver, is
evidence disseminating by the minute and that is should be ruled as an exigent
circumstance. The US Supreme Court in a lengthy discussion ruled that it is not an
exception to the right against warrantless searches and a search warrant must first
be acquired in order to conduct a blood test analysis on the drunk driver. Although
all states in the US adopts the implied consent law, individuals may still refuse
blood tests but the state on the other hand, may use such refusal as evidence
against the person in the court of law.
In the Philippines, we do not have such technology in acquiring warrants in
minutes and it would be impractical for our law enforcement officers to first
secure a warrant before conducting a blood test on the driver for it would render
such tests useless because at the time the search warrant is issued the blood
alcohol concentration level of the drunk driver has already diminished. This would
prevent conviction for such crime. In the Philippine setting, the dissipation of the
blood alcohol concentration in the body should constitute as an exigent
circumstance since evidence of the crime is being destroyed by the minute as
studies show the natural diffusion of BAC. As the author observed, most cases of
drunk driving occurs at night and that the officer tasked with the enforcement of
the law cannot secure a search warrant at this time of the day for there is no judge
on duty to issue a search warrant.
The author suggests that the Philippines should adopt the implied consent
law in order to conduct blood testing on the drunk driver. This would support the
elimination of the requirement for a search warrant because as discussed in the
preceding chapter because the implied consent law requires motorists, as a
condition of operating a motor vehicle within the State, to consent to BAC testing
if they are arrested or otherwise detained on suspicion of a drunk-driving offense.
Complementing the implied consent law with the argument that warrantless search
63

for drunk driving in the Philippines should fall as an exigent circumstance as an

exception to the Constitutional right of individuals would provide our enforcement
officers ammunition to conduct chemical tests on drunk drivers to keep our
highways protected for the general public.
An interesting issue

is

the

unconstitutional

conditions

doctrine.

Unconstitutional-conditions doctrine is a rule which describes that the government

cannot condition a person's receipt of a governmental benefit on the waiver of a
constitutionally protected right. In applying the implied consent law in relation to
the privilege of motorists to the use of our roads and highways, would this fall
under the doctrine of unconstitutional conditions provided that it would constitute
a waiver of his constitutionally protected right against warrantless search and
seizure? This question would be better left for our courts to decide and would be
an interesting topic for further studies.
Appendix
Republic Act No. 10586
Republic of the Philippines Congress of the Philippines Metro Manila
Fifteenth Congress Third Regular Session
Begun and held in Metro Manila, on Monday, the twenty-third day of July, two
thousand twelve.
[REPUBLIC ACT NO. 10586]
AN ACT PENALIZING PERSONS DRIVING UNDER THE INFLUENCE
OF ALCOHOL, DANGEROUS DRUGS, AND SIMILAR SUBSTANCES,
AND FOR OTHER PURPOSES

64

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:
SECTION 1. Short Title. This Act shall be known as the Anti-Drunk and
Drugged Driving Act of 2013.
SEC. 2. Declaration of Policy. Pursuant to the Constitutional principle that
recognizes the protection of life and property and the promotion of the general
welfare as essential for the enjoyment of the blessing of democracy, it is hereby
declared the policy of the State to ensure road safety through the observance of the
citizenry of responsible and ethical driving standards.
Towards this end, the State shall penalize the acts of driving under the influence of
alcohol, dangerous drugs and other intoxicating substances and shall inculcate the
standards of safe driving and the benefits that may be derived from it through
institutional programs and appropriate public information strategies.
SEC. 3. Definition of Terms. For purposes of this Act:
(a) Alcohol refers to alcoholic beverages classified into beer, wine and distilled
spirits, the consumption of which produces intoxication.
(b) Breath analyzer refers to the equipment which can determine the blood alcohol
concentration level of a person through testing of his breath.
(c) Chemical tests refer to breath, saliva, urine or blood tests to determine the
blood alcohol concentration level and/or positive indication of dangerous drugs
and similar substances in a persons body.
(d) Dangerous drugs and other similar substances refer to drugs listed in the
schedules annexed to the 1961 Single Convention on Narcotics Drugs, as amended
by the 1972 Protocol, and in the schedules annexed to the 1971 Single Convention
65

of Psychotropic Substances as enumerated in its attachment which is an integral

part of Republic Act No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002 and those that the Board may reclassify, add to or
remove from the list of dangerous drugs.
(e) Driving under the influence of alcohol refers to the act of operating a motor
vehicle while the drivers blood alcohol concentration level has, after being
subjected to a breath analyzer test, reached the level of intoxication, as established
jointly by the Department of Health (DOH), the National Police Commission
(NAPOLCOM) and the Department of Transportation and Communications
(DOTC).
(f) Driving under the influence of dangerous drugs and other similar substances
refers to the act of operating a motor vehicle while the driver, after being subjected
to a confirmatory test as mandated under Republic Act No. 9165, is found to be
positive for use of any dangerous drug.
(g) Field sobriety tests refer to standardized tests to initially assess and determine
intoxication, such as the horizontal gaze nystagmus, the walk-and-turn, the one-leg
stand, and other similar tests as determined jointly by the DOH, the NAPOLCOM
and the DOTC.
(h) Motor vehicle refers to any land transportation vehicle propelled by any power
other than muscular power.
(i) Motor vehicles designed to carry hazardous materials refer to those designed to
carry or transport materials which may endanger health and lives of the public.
(j) Public utility vehicles refer to motor vehicles for hire and used to carry or
transport passengers or goods.

66

SEC. 4. Drivers Education. Every applicant for a motor vehicle drivers license
shall complete a course of instruction that provides information on safe driving
including, but not limited to, the effects of the consumption of alcoholic beverages
on the ability of a person to operate a motor vehicle, the hazards of driving under
the influence of alcohol, dangerous drugs and/or other similar substances, and the
penalties attached for violation thereof.
For professional drivers, every applicant for a drivers license or those applying
for renewal thereof shall undergo the drivers education herein stated.
The drivers license written examination shall include questions concerning the
effects of alcohol and drug intoxication on the ability of a person to operate a
motor vehicle and the legal and pecuniary consequences resulting from violation
of the provisions of this Act.
SEC. 5. Punishable Act. It shall be unlawful for any person to drive a motor
vehicle while under the influence of alcohol, dangerous drugs and/or other similar
substances.
SEC. 6. Conduct of Field Sobriety, Chemical and Confirmatory Tests. A law
enforcement officer who has probable cause to believe that a person is driving
under the influence of alcohol, dangerous drugs and/or other similar substances by
apparent indications and manifestations, including overspeeding, weaving, lane
straddling, sudden stops, swerving, poor coordination or the evident smell of
alcohol in a persons breath or signs of use of dangerous drugs and other similar
substances, shall conduct field sobriety tests.
If the driver fails in the sobriety tests, it shall be the duty of the law enforcement
officer to implement the mandatory determination of the drivers blood alcohol
concentration level through the use of a breath analyzer or similar measuring
instrument.
67

If the law enforcement officer has probable cause to believe that a person is
driving under the influence of dangerous drugs and/or other similar substances, it
shall be the duty of the law enforcement officer to bring the driver to the nearest
police station to be subjected to a drug screening test and, if necessary, a drug
confirmatory test as mandated under Republic Act No. 9165.
Law enforcement officers and deputized local traffic enforcement officers shall be
responsible in implementing this section.
SEC. 7. Mandatory Alcohol and Chemical Testing of Drivers Involved in Motor
Vehicular Accidents. A driver of a motor vehicle involved in a vehicular accident
resulting in the loss of human life or physical injuries shall be subjected to
chemical tests, including a drug screening test and, if necessary, a drug
confirmatory test as mandated under Republic Act No. 9165, to determine the
presence and/or concentration of alcohol, dangerous drugs and/or similar
substances in the bloodstream or body.
SEC. 8. Refusal to Subject Oneself to Mandatory Tests. A driver of a motor
vehicle who refuses to undergo the mandatory field sobriety and drug tests under
Sections 6, 7 and 15 of this Act shall be penalized by the confiscation and
automatic revocation of his or her drivers license, in addition to other penalties
provided herein and/or other pertinent laws.
SEC. 9. Acquisition of Equipment. Within four (4) months from the effectivity of
this Act, the Land Transportation Office (LTO) and the Philippine National Police
(PNP) shall acquire sufficient breath analyzers and drug-testing kits to be utilized
by law enforcement officers and deputized local traffic enforcement officers
nationwide giving priority to areas with high reported occurrences of accidents.
For purposes of acquiring these equipment and for the training seminars indicated
in Section 10 hereof, the LTO shall utilize the Special Road Safety Fund allotted
for this purpose as provided under Section 7 of Republic Act No. 8794, entitled:
68

An Act Imposing a Motor Vehicle Users Charge on Owners of All Types of

Motor Vehicles and for Other Purposes. Additional yearly appropriations for the
purchase of breath analyzers and drug-testing kits shall be provided annually
under the General Appropriations Act.
SEC. 10. Deputation. The LTO may deputize traffic enforcement officers of the
PNP, the Metropolitan Manila Development Authority (MMDA) and cities and
municipalities in order to enforce the provisions of this Act.
SEC. 11. Law Enforcement Officer Education. The LTO and the PNP shall
conduct training seminars for their law enforcers and deputies with regard to the
proper conduct of field sobriety tests and breath analyzer tests every year. Within
four (4) months from the effectivity of this Act, the LTO shall publish the
guidelines and procedures for the proper conduct of field sobriety tests, which
guidelines shall be made available to the public and made available for download
through the official LTO website.
SEC. 12. Penalties. A driver found to have been driving a motor vehicle while
under the influence of alcohol, dangerous drugs and/or other similar substances, as
provided for under Section 5 of this Act, shall be penalized as follows:
(a) If the violation of Section 5 did not result in physical injuries or homicide, the
penalty of three (3) months imprisonment, and a fine ranging from Twenty
thousand pesos (Php20,000.00) to Eighty thousand pesos (Php80,000.00) shall be
imposed;
(b) If the violation of Section 5 resulted in physical injuries, the penalty provided
in Article 263 of the Revised Penal Code or the penalty provided in the next
preceding subparagraph, whichever is higher, and a fine ranging from One
hundred thousand pesos (Php100,000.00) to Two hundred thousand pesos
(Php200,000.00) shall be imposed;
69

(c) If the violation of Section 5 resulted in homicide, the penalty provided in

Article 249 of the Revised Penal Code and a fine ranging from Three hundred
thousand pesos (Php300,000.00) to Five hundred thousand pesos (Php500,000.00)
shall be imposed; and
(d) The nonprofessional drivers license of any person found to have violated
Section 5 of this Act shall also be confiscated and suspended for a period of twelve
(12) months for the first conviction and perpetually revoked for the second
conviction. The professional drivers license of any person found to have violated
Section 5 of this Act shall also be confiscated and perpetually revoked for the first
conviction. The perpetual revocation of a drivers license shall disqualify the
person from being granted any kind of drivers license thereafter.
The prosecution for any violation of this Act shall be without prejudice to criminal
prosecution for violation of the Revised Penal Code, Republic Act No. 9165 and
other special laws and existing local ordinances, whenever applicable.
SEC. 13. Direct Liability of Operator and/or Owner of the Offending Vehicle.
The owner and/or operator of the vehicle driven by the offender shall be directly
and principally held liable together with the offender for the fine and the award
against the offender for civil damages unless he or she is able to convincingly
prove that he or she has exercised extraordinary diligence in the selection and
supervision of his or her drivers in general and the offending driver in particular.
This section shall principally apply to the owners and/or operators of public utility
vehicles and commercial vehicles such as delivery vans, cargo trucks, container
trucks, school and company buses, hotel transports, cars or vans for rent, taxi cabs,
and the like.
SEC. 14. Nationwide Information Campaign. Within one (1) month from the
promulgation of the implementing rules and regulations as provided under Section
70

17 hereof, the Philippine Information Agency (PIA), in coordination with the LTO,
the local government units (LGUs) and other concerned agencies, shall conduct
information, education and communication (IEC) campaign for the attainment of
the objectives of this Act.
SEC. 15. Nationwide Random Terminal Inspection and Quick Random Drug Tests.
The LTO shall conduct random terminal inspections and quick random drug tests
of public utility drivers. The cost of such tests shall be defrayed by the LTO.
SEC. 16. Review of Penalties. The LTO shall, after five (5) years from the
effectivity of this Act and every five (5) years thereafter, review the applicability
and enforcement of all foregoing pecuniary penalties and shall initiate amendment
and/or upgrade the same as may be necessary, subject to the approval of the
Secretary of the DOTC.
SEC. 17. Implementing Rules and Regulations. The DOTC, the DOH and the
NAPOLCOM shall, within three (3) months from the effectivity of this Act, jointly
promulgate the necessary implementing rules and regulations to carry out the
provisions of this Act.
SEC. 18. Separability Clause. If, for any reason, any part or provision of this Act
is declared invalid, such declaration shall not affect the other provisions of this
Act.
SEC. 19. Repealing Clause. Subparagraph (f), Section 56, Article 1 of Republic
Act No. 4136, otherwise known as the Land Transportation and Traffic Code, as
amended; subparagraph (f), Section 5 of Republic Act No. 7924, otherwise known
as An Act Creating the Metropolitan Manila Development Authority, Defining its
Powers and Functions, Providing Funds Therefor and for Other Purposes;
subparagraph (a), Section 36 of Republic Act No. 9165; and all other laws, orders,
issuances, circulars, rules and regulations or parts thereof which are inconsistent
71

with any provision of this Act are hereby repealed or modified accordingly.
SEC. 20. Effectivity. This Act shall take effect after fifteen (15) days from its
publication in the Official Gazette or in two (2) national newspapers of general
circulation.
Approved,

(Sgd.) FELICIANO BELMONTE JR.

(Sgd.) JUAN PONCE ENRILE

Speaker of the House of Representatives

President of the Senate

This Act which is a consolidation of Senate Bill No. 3365 and House Bill No.
4251 was finally passed by the Senate and the House of Representatives on
January 28, 2013 and January 29, 2013, respectively.

(Sgd.) MARILYN B. BARUA-YAP Secretary

(Sgd.) EDWIN B. BELLEN

General House of Representatives

Acting Senate Secretary

Approved: MAY 27 2013

(Sgd.) BENIGNO S. AQUINO III
President of the Philippines

72

V C Section 23152 Driving Under Influence of Alcohol or Drugs

Driving Under Influence of Alcohol or Drugs

23152. (a) It is unlawful for any person who is under the influence of any
alcoholic beverage or drug, or under the combined influence of any alcoholic
beverage and drug, to drive a vehicle.
(b) It is unlawful for any person who has 0.08 percent or more, by weight, of
alcohol in his or her blood to drive a vehicle.
For purposes of this article and Section 34501.16, percent, by weight, of alcohol in
a person's blood is based upon grams of alcohol per 100 milliliters of blood or
grams of alcohol per 210 liters of breath.
In any prosecution under this subdivision, it is a rebuttable presumption that the
person had 0.08 percent or more, by weight, of alcohol in his or her blood at the
time of driving the vehicle if the person had 0.08 percent or more, by weight, of
alcohol in his or her blood at the time of the performance of a chemical test within
three hours after the driving.
73

(c) It is unlawful for any person who is addicted to the use of any drug to drive a
vehicle. This subdivision shall not apply to a person who is participating in a
narcotic treatment program approved pursuant to Article 3 (commencing with
Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety
Code.
(d) It is unlawful for any person who has 0.04 percent or more, by weight, of
alcohol in his or her blood to drive a commercial motor vehicle, as defined in
Section 15210.
In any prosecution under this subdivision, it is a rebuttable presumption that the
person had 0.04 percent or more, by weight, of alcohol in his or her blood at the
time of driving the vehicle if the person had 0.04 percent or more, by weight, of
alcohol in his or her blood at the time of the performance of a chemical test within
three hours after the driving.
(e) This section shall ( )1 remain in effect only until January 1, ( )2 2014, and as
of that date is repealed, unless a later enacted statute, that is enacted before
January 1, 2014, deletes or extends that date.
( )3
Amended and repealed Sec. 1, Ch. 753, Stats. 2012. Operative January 01, 2013.
Repeal operative January 1, 2014.The 2012 amendment added the italicized
material, and at the point(s) indicated, deleted the following:1. "become operative
on "2. "1992, and shall remain operative until the director determines that federal
regulations adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986
(49 U.S.C. Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of
the Code of Federal Regulations do not require the state to prohibit operation of
commercial vehicles when the operator has a concentration of alcohol in his or her
blood of 0.04 percent by weight or more."3. "(f) The director shall submit a notice
of the determination under subdivision (e) to the Secretary of State, and this
section shall be repealed upon the receipt of that notice by the Secretary of State."
NOTE: The preceding section becomes inoperative on January 1, 2014, at
which time the following section becomes operative. The preceding section is
repealed January 1, 2014.
23152 (a) It is unlawful for ( )1 a person who is under the influence of any
alcoholic beverage or drug, or under the combined influence of any alcoholic
beverage and drug, to drive a vehicle.
(b) It is unlawful for ( )1 a person who has 0.08 percent or more, by weight, of
alcohol in his or her blood to drive a vehicle.
For purposes of this article and Section 34501.16, percent, by weight, of alcohol in
74

a person's blood is based upon grams of alcohol per 100 milliliters of blood or
grams of alcohol per 210 liters of breath.
In any prosecution under this subdivision, it is a rebuttable presumption that the
person had 0.08 percent or more, by weight, of alcohol in his or her blood at the
time of driving the vehicle if the person had 0.08 percent or more, by weight, of
alcohol in his or her blood at the time of the performance of a chemical test within
three hours after the driving.
(c) It is unlawful for ( )1 a person who is addicted to the use of any drug to drive a
vehicle. This subdivision shall not apply to a person who is participating in a
narcotic treatment program approved pursuant to Article 3 (commencing with
Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety
Code.
(d) It is unlawful for ( )1 a person who has 0.04 percent or more, by weight, of
alcohol in his or her blood to drive a commercial motor vehicle, as defined in
Section 15210.
In any prosecution under this subdivision, it is a rebuttable presumption that the
person had 0.04 percent or more, by weight, of alcohol in his or her blood at the
time of driving the vehicle if the person had 0.04 percent or more, by weight, of
alcohol in his or her blood at the time of the performance of a chemical test within
three hours after the driving.
(e) ( )3 It is unlawful for a person who is under the influence of any drug to
drive a vehicle.
(f) ( )4 It is unlawful for a person who is under the combined influence of any
alcoholic beverage and drug to drive a vehicle.
(g) This section shall become operative on January 1, 2014.
Amended Sec. 2, Ch. 753, Stats. 2012. Effective January 1, 2014.The 2012
amendment added the italicized material, and at the point(s) indicated, deleted the
following:1. "any"2. "or drug, or under the combined influence of any alcoholic
beverage and drug, "3. "This section shall become operative on January 1, 1992,
and shall remain operative until the director determines that federal regulations
adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C.
Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of the Code of
Federal Regulations do not require the state to prohibit operation of commercial
vehicles when the operator has a concentration of alcohol in his or her blood of
0.04 percent by weight or more."4. "The director shall submit a notice of the
determination under subdivision (e) to the Secretary of State, and this section shall
be repealed upon the receipt of that notice by the Secretary of State."23152.
Amended Sec. 32, Ch. 455, Stats. 1995. Effective September 5, 1995.Repealed
75

Sec. 3, Ch. 753, Stats. 2012. Effective January 1, 2013.The repealed section read
as follows: "(a) It is unlawful for any person who is under the influence of any
alcoholic beverage or drug, or under the combined influence of any alcoholic
beverage and drug, to drive a vehicle.(b) It is unlawful for any person who has
0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
For purposes of this Article and Section 34501.16, percent, by weight, of alcohol
in a person's blood is based upon grams of alcohol per 100 milliliters of blood or
grams of alcohol per 210 liters of breath.In any prosecution under this subdivision,
it is a rebuttable presumption that the person had 0.08 percent or more, by weight,
of alcohol in his or her blood at the time of driving the vehicle if the person had
0.08 percent or more, by weight, of alcohol in his or her blood at the time of the
performance of a chemical test within three hours after the driving.(c) It is
unlawful for any person who is addicted to the use of any drug to drive a vehicle.
This subdivision shall not apply to a person who is participating in a narcotic
treatment program approved pursuant to Article 3 (commencing with Section
11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.(d)
This section shall become operative only upon the receipt by the Secretary of State
of the notice specified in subdivision (f) of Section 23152, as added by Section 25
of Chapter 1114 of the Statutes of 1989."

V C Section 23612 Implied Consent For Chemical Testing

Implied Consent For Chemical Testing
23612. (a) (1) (A) A person who drives a motor vehicle is deemed to have given
his or her consent to chemical testing of his or her blood or breath for the purpose
of determining the alcoholic content of his or her blood, if lawfully arrested for an
offense allegedly committed in violation of Section 23140, 23152, or 23153. If a
blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d)
applies.
(B) A person who drives a motor vehicle is deemed to have given his or her
consent to chemical testing of his or her blood ( )1 for the purpose of determining
the drug content of his or her blood, if lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153. If a blood test is
unavailable, the person shall be deemed to have given his or her consent to
chemical testing of his or her urine and shall submit to a urine test.
(C) The testing shall be incidental to a lawful arrest and administered at the
direction of a peace officer having reasonable cause to believe the person was
76

driving a motor vehicle in violation of Section 23140, 23152, or 23153.

(D) The person shall be told that his or her failure to submit to, or the failure to
complete, the required chemical testing will result in a fine, mandatory
imprisonment if the person is convicted of a violation of Section 23152 or 23153,
and (i) the suspension of the persons privilege to operate a motor vehicle for a
period of one year, (ii) the revocation of the persons privilege to operate a motor
vehicle for a period of two years if the refusal occurs within 10 years of a separate
violation of Section 23103 as specified in Section 23103.5, or of Section 23140,
23152, or ( )2 23153 of this code, or of Section 191.5 or subdivision (a) of Section
192.5 of the Penal Code that resulted in a conviction, or if the persons privilege to
operate a motor vehicle has been suspended or revoked pursuant to Section 13353,
13353.1, or 13353.2 for an offense that occurred on a separate occasion, or (iii) the
revocation of the persons privilege to operate a motor vehicle for a period of three
years if the refusal occurs within 10 years of two or more separate violations of
Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or ( )2
23153 of this code, or of Section 191.5 or subdivision (a) of Section 192.5 of the
Penal Code, or any combination thereof, that resulted in convictions, or if the
persons privilege to operate a motor vehicle has been suspended or revoked two
or more times pursuant to Section 13353, 13353.1, or 13353.2 for offenses that
occurred on separate occasions, or if there is any combination of those convictions
or administrative suspensions or revocations.
(2) (A) If the person is lawfully arrested for driving under the influence of an
alcoholic beverage, the person has the choice of whether the test shall be of his or
her blood or breath and the officer shall advise the person that he or she has that
choice. If the person arrested either is incapable, or states that he or she is
incapable, of completing the chosen test, the person shall submit to the remaining
test. If a blood or breath test, or both, are unavailable, then paragraph (2) of
subdivision (d) applies.
(B) If the person is lawfully arrested for driving under the influence of any drug or
the combined influence of an alcoholic beverage and any drug, the person has the
choice of whether the test shall be of his or her ( )3 blood or ( )4 breath, and the
officer shall advise the person that he or she has that choice.
(C) A person who chooses to submit to a breath test may also be requested to
submit to a blood ( )5 test if the officer has reasonable cause to believe that the
person was driving under the influence of a drug or the combined influence of an
alcoholic beverage and a drug and if the officer has a clear indication that a blood
( )5 test will reveal evidence of the person being under the influence. The officer
shall state in his or her report the facts upon which that belief and that clear
indication are based. The ( )6 officer shall advise the person that he or she is
required to submit to an additional ( )7 test. The person shall submit to and
complete a blood test. If the person arrested ( )8 is incapable of completing the
77

blood test, the person shall submit to and complete ( )9 a urine test.
(3) If the person is lawfully arrested for an offense allegedly committed in
violation of Section 23140, 23152, or 23153, and, because of the need for medical
treatment, the person is first transported to a medical facility where it is not
feasible to administer a particular test of, or to obtain a particular sample of, the
persons ( )10 blood or ( )4 breath, the person has the choice of those ( )11 tests,
including a urine test, that are available at the facility to which that person has
been transported. In that case, the officer shall advise the person of those tests that
are available at the medical facility and that the persons choice is limited to those
tests that are available.
(4) The officer shall also advise the person that he or she does not have the right to
have an attorney present before stating whether he or she will submit to a test or
tests, before deciding which test or tests to take, or during administration of the
test or tests chosen, and that, in the event of refusal to submit to a test or tests, the
refusal may be used against him or her in a court of law.
(5) A person who is unconscious or otherwise in a condition rendering him or her
incapable of refusal is deemed not to have withdrawn his or her consent and a test
or tests may be administered whether or not the person is told that his or her
failure to submit to, or the noncompletion of, the test or tests will result in the
suspension or revocation of his or her privilege to operate a motor vehicle. A
person who is dead is deemed not to have withdrawn his or her consent and a test
or tests may be administered at the direction of a peace officer.
(b) A person who is afflicted with hemophilia is exempt from the blood test
required by this ( )12 section, but shall submit to, and complete, a urine test.
(c) A person who is afflicted with a heart condition and is using an anticoagulant
under the direction of a licensed physician and surgeon is exempt from the blood
test required by this ( )13 section, but shall submit to, and complete, a urine test.
(d) (1) A person lawfully arrested for an offense allegedly committed while the
person was driving a motor vehicle in violation of Section 23140, 23152, or 23153
may request the arresting officer to have a chemical test made of the arrested
persons blood or breath for the purpose of determining the alcoholic content of
that persons blood, and, if so requested, the arresting officer shall have the test
performed.
(2) If a blood or breath test is not available under subparagraph (A) of paragraph
(1) of subdivision (a), or under subparagraph (A) of paragraph (2) of subdivision
(a), or under paragraph (1) of this subdivision, the person shall submit to the
remaining test in order to determine the percent, by weight, of alcohol in the
persons blood. If both the blood and breath tests are unavailable, the person shall
be deemed to have given his or her consent to chemical testing of his or her urine
78

and shall submit to a urine test.

(e) If the person, who has been arrested for a violation of Section 23140, 23152, or
23153, refuses or fails to complete a chemical test or tests, or requests that a blood
or urine test be taken, the peace officer, acting on behalf of the department, shall
serve the notice of the order of suspension or revocation of the persons privilege
to operate a motor vehicle personally on the arrested person. The notice shall be on
a form provided by the department.
(f) If the peace officer serves the notice of the order of suspension or revocation of
the persons privilege to operate a motor vehicle, the peace officer shall take
possession of all drivers licenses issued by this state that are held by the person.
The temporary drivers license shall be an endorsement on the notice of the order
of suspension and shall be valid for 30 days from the date of arrest.
(g) (1) The peace officer shall immediately forward a copy of the completed notice
of suspension or revocation form and any drivers license taken into possession
under subdivision (f), with the report required by Section 13380, to the
department. If the person submitted to a blood or urine test, the peace officer shall
forward the results immediately to the appropriate forensic laboratory. The
forensic laboratory shall forward the results of the chemical tests to the department
within 15 calendar days of the date of the arrest.
(2) (A) Notwithstanding any other ( )14 law, a document containing data prepared
and maintained in the governmental forensic laboratory computerized database
system that is electronically transmitted or retrieved through public or private
computer networks to or by the department is the best available evidence of the
chemical test results in all administrative proceedings conducted by the
department. In addition, any other official record that is maintained in the
governmental forensic laboratory, relates to a chemical test analysis prepared and
maintained in the governmental forensic laboratory computerized database system,
and is electronically transmitted and retrieved through a public or private computer
network to or by the department is admissible as evidence in the departments
administrative proceedings. In order to be admissible as evidence in administrative
proceedings, a document described in this subparagraph shall bear a certification
by the employee of the department who retrieved the document certifying that the
information was received or retrieved directly from the computerized database
system of a governmental forensic laboratory and that the document accurately
reflects the data received or retrieved.
(B) Notwithstanding any other ( )14 law, the failure of an employee of the
department to certify under subparagraph (A) is not a public offense.
(h) A preliminary alcohol screening test that indicates the presence or
concentration of alcohol based on a breath sample in order to establish reasonable
79

cause to believe the person was driving a vehicle in violation of Section 23140,
23152, or 23153 is a field sobriety test and may be used by an officer as a further
investigative tool.
(i) If the officer decides to use a preliminary alcohol screening test, the officer
shall advise the person that he or she is requesting that person to take a
preliminary alcohol screening test to assist the officer in determining if that person
is under the influence of alcohol or drugs, or a combination of alcohol and drugs.
The persons obligation to submit to a blood, breath, or urine test, as required by
this section, for the purpose of determining the alcohol or drug content of that
persons blood, is not satisfied by the person submitting to a preliminary alcohol
screening test. The officer shall advise the person of that fact and of the persons
right to refuse to take the preliminary alcohol screening test.
No reimbursement is required by this act pursuant to Section 6 of Article XIIIB
of the California Constitution because the only costs that may be incurred by a
local agency or school district will be incurred because this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the penalty for
a crime or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of Section 6 of
Article XIIIB of the California Constitution.
BIBLIOGRAPHY
Books:
Bernas, Joaquin Fr., The 1987 Constitution of the Philippines: A Commentary,
(2010), Rex Publishing
Maxino, Marcelino, LL.M., Cases and Issues for Philippine Comparative Study
(2004),
Reyes, JBL, Revised Penal Code of the Philippines Book 1, (2009), Rex
Publishing
Reyes, JBL, Revised Penal Code of the Philippines Book 2, (2009), Rex
Publishing
80

Other Articles:
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col. 1.
Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, 9 Kansas Prosecutor
17, 18 (Spring 2012).
Buglass, A., ed. (2011). Handbook of alcoholic beverages : technical, analytical
and nutritional aspects. Chichester: Wiley
Burg v Municipal Court, (1983), 35 Cal. 3d at p. 263
California Breathalyzer,
http://www.californiaduipenalties.net/californiabreathalyzer.html (2013)
Colb, S., The U.S. Supreme Court Rules That Blood Tests for Drunk Driving
Suspects Require a Search Warrant: A Wise Decision?
http://verdict.justia.com/2013/05/15/the-u-s-supreme-court-rules-that-blood-testsfor-drunk-driving-suspects-require-a-search-warrant#sthash.fqiAVuTK.dpuf (May
15, 2013)
California Vehicle Code, Section 23512
Constantino vs. Asia Life Insurance Co., 87 Phil 248
81

Del Rosario v De los Santos, G.R. Nos. L-20589-90, March 21, 1968
DUI Breathalyzer Accuracy. http://www.duicentral.com/evidence/breathalyzeraccuracy/2/
Drugs and society - Page 189, Glen (Glen R.) Hanson, Peter J. Venturelli, Annette
E. Fleckenstein 2006
Gercio vs. Sun Life Assurance Company of Canada
Gorospe,, M, Anti-drunk driving bill passes final reading in Congress, (2011)
Health Justice Philippines (2013, February 21), Drunk Driving Laws lacking in the
Philippines
Laurence, M., The Development of California Drunk Driving Legislation (1988)
Lim, M., Its Official, Drunk Driving is Against the Law (May 31, 2013),
http://newsinfo.inquirer.net/417711/its-official-drunk-driving-is-against-thelaw#ixzz2de0eqZEE
Punay, E., DOJ backs harsher penalties for reckless driving, (2012) < http://
www.philstar.com/Article.aspx?articleId=795159&publicationSubCategoryId=

>

September 30, 2012

Stats.1913, Chapter 326, Section 17, p. 646; Burg v. Municipal Court (1983) 35
Cal. 3d 257, 262.)

82

Tator, Charles H., ed. (2008). Catastrophic Injuries in Sports and Recreation:
Causes and Prevention : A Canadian Study (2 ed.).
Taylor, F. Sherwood (1945). "The Evolution of the Still".Annals of Science5 (3):
18Forbes, Robert James (1970). A short history of the art of distillation: from the
beginnings up to the death of Cellier Blumenthal
Roberts, C.; Robinson, S.P. (2007). "Alcohol concentration and carbonation of
drinks: The effect on blood alcohol levels". Journal of Forensic and Legal
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E. Fleckenstein 2006
Report of the Legislative Committee of the Senate and Assembly Relating to
Traffic Hazards and Problems and Motor Vehicle Public Liability Insurance.
Submitted to the California Legislature 17 Table 5 (California Legislature: 1929).
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Subject in the Postabsorptive State, 33(2) Clinical Chemistry 261 (1987)
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83

(codifying 1935 Stat. ch, 605, effective September 15, 1935) (discretionary).
Vehicle Code 23126 (codifying 1969 Stat. ch. 231, effective November 10,1969).
Vehicle Code 13353 (codifying 1966 Stat. ch, 138, effective October 6,1966).

Table of Contents

I. Introduction

Page 3

Definition of Key Terms

Page 7

Scope and Limitation

Page 9

Objectives

Page 11

II. History of California and Philippine DUI Laws

Page 15

III. Analysis

Page 27

Examining RA 10586

Page 27

Breath Analyzers and Their Reliability

Page 35

Blood Testing and Warrantless Searches

Page 46
84

Implied Consent and Refusal

Page 55

Applicability in Philippine Setting

Page 56

IV. Conclusion
Recommendation

Page 59
Page 61

Appendix

Page 64

Bibliography

Page 80

85