Refusal to undergo a medical examination under Article 130 of the Code of Administrative Offenses: liability regardless of the state of intoxication

A driver’s refusal to undergo an examination for intoxication in a medical facility, proposed by a police officer in the prescribed manner, in itself constitutes an administrative offence under Article 130 of the Code of Ukraine on Administrative Offences and does not depend on whether the driver was actually under the influence of narcotic (or other) substances. The driver’s references to the absence of signs of intoxication or a subjective belief in being sober do not release him or her from liability if a proper refusal to undergo the examination has been recorded.

Legal framework: Article 130 of the Code of Administrative Offences and clause 2.5 of the Traffic Rules
Article 130 provides for liability not only for driving while intoxicated, but also for refusing to undergo the prescribed examination, the obligation for which is expressly set out in clause 2.5 of the Traffic Rules. Such refusal is an independent offence and, in terms of consequences, is equated to driving while intoxicated because of its high public danger.

Refusal as an independent offence: key focuses of court practice
Courts consistently state that a driver’s refusal to undergo an examination for intoxication is an independent ground for administrative liability, regardless of the person’s actual sobriety. What matters legally is the failure to comply with a lawful demand of the police officer, not the outcome of a potential medical examination. Courts of appeal stress that what must be proven is the existence of a lawful demand, compliance with the procedure for presenting it, and the recorded refusal, rather than the driver’s medical condition. Therefore, the argument “I was sober, so I did not have to undergo the examination” is not recognised as legally relevant for exemption from liability.

Type of intoxication does not affect qualification of refusal
Courts of appeal indicate that where a driver refuses to undergo an examination, the type of possible intoxication (alcohol or drugs) is irrelevant for qualification under part 1 of Article 130. What is incriminated is the breach of clause 2.5 of the Traffic Rules – refusal to undergo the examination in the prescribed manner, even if there is a suspicion of narcotic rather than alcohol intoxication. This approach is intended to prevent abuses where drivers try to manipulate the difference between types of intoxication to avoid the examination procedure.

Significance of a driver’s explanations about “no signs”
Drivers often state in their explanations that they had no signs of intoxication and therefore considered the examination unfounded and refused it. However, case law consistently proceeds from the premise that a driver’s subjective assessment of his or her own condition, as well as references to the absence of external signs of intoxication, cannot substitute the results of a medical examination or undermine the mandatory nature of complying with a lawful police demand.
The driver’s explanations are relevant only as one item of evidence, which is assessed together with other materials in the case: video recordings, reports, witness statements, examination reports and police memoranda. Such explanations alone do not constitute a ground for closing the proceedings if there is proper evidence that the refusal did occur and was duly recorded.

When there is no offence
Liability for refusal to undergo an examination is possible only if the fact of driving a vehicle by a specific person is proven. If the case file contains no proper evidence that the person was driving (such as video recordings, witness statements, etc.), courts annul decisions issued under Article 130 of the Code of Administrative Offences. Refusal to undergo an examination alone does not constitute the offence without a proven fact of driving; the full offence arises only when there is a body of evidence of driving and a properly documented refusal.​

Procedural requirements for recording refusal
For lawful liability for refusal to undergo an examination, the police must comply with the prescribed procedure: the refusal must be clear, unambiguous and properly recorded – preferably on video, or, if there is no video, in the presence of two witnesses with appropriate entries in the report. The examination must be proposed in the manner provided by law, with an explanation of the right to be examined using technical devices or in a medical facility and with observance of the route, timing and form of documents; material breaches of these requirements (no video or witnesses, errors in the report) often serve as grounds for cancelling the decision and closing the proceedings.

Takeaways for drivers and lawyers
Modern case law confirms that a duly recorded refusal to undergo an examination for intoxication in a medical facility constitutes a completed administrative offence under Article 130, regardless of the driver’s actual condition. References to the absence of signs of drug or alcohol intoxication, ignorance of the law or a personal belief in one’s sobriety do not release a person from liability if he or she has failed to fulfil the obligation to undergo an examination in the manner prescribed by law.
At the same time, defence in such cases is possible and often successful where procedural violations by the police are documented: failure to prove the fact of driving, lack of proper recording of the refusal, mistakes in the reports or non-compliance with the requirements for sending the person to a medical facility. It is the analysis of evidence, videos, reports and compliance with formal requirements that becomes the key tool for a lawyer when appealing decisions under Article 130.
If you have any questions or issues related to liability for refusal to undergo an examination for intoxication, the drawing up of reports, challenging decisions or developing a defence strategy under Article 130, it is advisable to seek qualified legal assistance as soon as possible in order to assess the evidence, choose the right tactics and minimise the risk of administrative sanctions.

Author: Yevhenii Murchenko, Head of the Criminal Law and Procedure Practice of the law firm “WINNER”.