In a case involving driving under the influence of alcohol, the defense’s analysis starts with the concrete evidence and the moment of driving. A breathalyzer test result, a toxicological analysis, and relevant criminal alcohol level are different things; no general irregularity invoked does not guarantee the exclusion of evidence or acquittal.

The criminal threshold and the difference between the breathalyzer test and biological the evidence

According to Article 336(1) of the Criminal Code, the offense of driving under the influence of alcohol involves an alcohol level exceeding 0.80 g/l pure alcohol in the blood. The breathalyzer measures alcohol in the exhaled air and is used in the road traffic procedure, including in determining the circumstances under which biological samples are collected. The blood concentration is determined by authorized medical-legal institutions.

Decree no. 195/2002 provides for the mandatory collection of biological samples, among other things, when testing indicates more than 0.40 mg/l pure alcohol in exhaled air. For values between 0.11 and 0.40 mg/l, the person may request the collection. At a value of up to 0.10 mg/l, a second test may be requested after 15 minutes, but no later than 20 minutes; in this case, the law gives legal value to the lower result.

What is happening in the case file

  • the values and times recorded for testing, stopping and harvesting;
  • identification of the device, relevant approval/verification documents and method of use;
  • the documents regarding the collection, identification and sealing of the containers, the transport and receipt of the samples;
  • the analysis bulletin, the applied methodology and the consistency between the acts;
  • the circumstances of the driving and any evidence that may clarify the chronology or the alcohol consumption.

The defense may request clarification of inconsistencies, the administration of evidence, or the performance of an expert analysis, if there is a concrete basis for it. A retroactive calculation of alcohol level is not automatically mandatory in every case, and its conclusion is not determined in abstract terms: its relevance depends on the case data and the technical question addressed to the specialist.

An irregularity does not automatically exclude the evidence.

The Code of Criminal Procedure regulates the exclusion of evidence obtained illegally and the effects of the nullity of the act by which the evidence was ordered, authorized or administered. The specific violation, the incident rule and the effect on the evidence must be demonstrated. The court assesses the legality and value of the evidence as a whole. The mere fact that a document is missing or that there is a time difference does not, by itself, lead to payment.

Practical steps

Keep the received documents and record the hours, places and sequence of events as accurately as possible. Discuss promptly with a criminal lawyer the access to the file, deadlines and requests for evidence appropriate to the situation. Do not drive after consuming alcohol and do not refuse or avoid the collection: refusal or removal of biological samples is a distinct offense provided for by Article 337 of the Criminal Code.

Official texts applicable: Criminal Code, Ordinance no. 195/2002 and The Code of Criminal Procedure. For assistance, see Criminal lawyer's page from Bucharest.

General information, not legal advice for an individual case. The legal regime may be modified; check the current form and the documents of the case.