Companies and organizations with driving duties can require breath tests before driving. Site staff then wonder how to handle cases where a driver says they will not take the test, or where the test does not finish despite several attempts. In particular, it is easy to be confused about whether the same rules apply as when someone does not comply with a police request for an alcohol test.
The only thing the two situations share is that the test uses breath; the person requesting the test and the basis for the procedure are different. Article 44 of Korea's Road Traffic Act sets out the procedure by which police officers, under certain conditions, test whether a driver has been drinking through a breath test. A workplace pre-drive test, on the other hand, must be run on the basis of the standards that actually apply, such as the organization's vehicle operation rules and safety management procedures. So an incomplete or refused workplace test cannot be treated under the same rules as refusing a police test.
Police breath tests take place within the scope set by law
Under Article 44(2) of the Road Traffic Act, a police officer may test whether a driver has been drinking by breath test when deemed necessary for traffic safety and hazard prevention, or when there are substantial grounds to believe the person drove while intoxicated. In such cases, the driver must comply with the police officer's test. The party requesting the test in this article is a police officer, not a company manager, dispatcher, or safety officer.
Article 44(3) provides that a driver who disputes the breath test result may, with the driver's consent, be retested by methods such as a blood draw. The blood alcohol concentration threshold of 0.03 percent or higher in Article 44(4) is also the driving prohibition standard under the Road Traffic Act. The mere fact that a number appeared on a workplace test screen or that a test did not complete does not mean this law's procedures or standards apply as they are.
Workplace tests are judged by the standards that apply to the organization
If a workplace runs pre-drive breath tests, it first needs to confirm which work the procedure covers and which internal rules or safety management standards it rests on. Article 44 of the Road Traffic Act cited here concerns breath tests by police officers, so this article alone cannot determine every workplace's authority to test or the actions to take after an incomplete test.
Even if a company notice quotes the Road Traffic Act, it is appropriate not to write it as if company staff had the same investigative authority as police officers. Once the standards that actually apply are confirmed, you can clearly set out the work subject to testing, when tests take place, who guides people through the test, and who decides whether driving goes ahead. Whether the person who guided the test also decides on personnel action or removal from driving duty may also differ depending on the rules and lines of authority.
Record incomplete tests and explicit refusals separately
A result showing only that the test did not finish makes it hard to conclude there was a deliberate refusal. The person may not have understood how to use the device, the breath test may not have completed normally, or they may have asked for an explanation of who receives the test information and how it is used. On site, rather than first writing down an assessment of "refusal," recording the words and actions that actually occurred separately helps later judgments.
As a hypothetical example, consider a driver who tried the pre-drive test twice without a completion indication appearing and then asked for an explanation of who sees the test results. The facts to observe here are "the test did not complete on two attempts" and "the person asked for an explanation of how the information is used." Rather than interpreting this as the same behavior as refusing a police alcohol test, you need to distinguish whether it is a problem with the usage process or an objection about how the procedure was explained.
A possible action is to give the usage instructions again and pass the fact of the incomplete test and the person's explanation to the person with authority to decide whether driving goes ahead. Whether to continue or hold off on driving is a matter to judge according to the standards that apply to that workplace. In this case, the procedure's completion criterion does not lie in the person agreeing to a particular wording. The request, the actual attempts, the request for an explanation, and the decision made about driving must each be recorded separately.
The same testing method does not mean the same legal procedure
| Item to distinguish | Police breath test | Workplace pre-drive test |
|---|---|---|
| Who requests the test | A police officer under conditions set by law | The staff member designated in the organization's procedure |
| Basis for judgment | Road Traffic Act, Article 44 | Rules and operating standards that actually apply to the organization and the work |
| What to look at when the test did not finish | The scope of the procedure set by law | The reason it was incomplete, authority to decide on driving, internal procedure |
| When an objection is raised | Retest provision premised on the driver's consent | Methods for explanation, intake, and re-checking under the applicable standards |
The key difference in the table is not the equipment or how breath is given, but where the procedure starts. A police breath test is an inquiry set by the Road Traffic Act, while a workplace test is a procedure the organization has set up for driving safety. Therefore, you must not tell people that not taking a company test has the same legal effect as refusing a police test simply because they did not take it.
Conversely, if a pre-drive check procedure is in place, letting an incomplete test pass without any explanation may also not fit the purpose of that procedure. Recording in concrete terms the time the test was requested, whether a test was actually attempted, the reason the person gave, and the decision made about driving assignment lets you review the facts and the applicable standards later.
Notices should show the on-site sequence of actions rather than warn of penalties
In a company notice, rather than wording that mixes police and workplace procedures, such as "legal penalties for refusing an alcohol test," it is better to write the sequence of actions needed on site. You can present, in line with how things actually operate, the purpose of pre-drive tests and the work they cover, the manager to contact when a test does not finish, and the point of contact for questions about how test information is handled.
The roles of site staff also need to be divided. Staff guide people through the test and pass on the facts that actually occurred, and the person with authority to decide on driving or follow-up actions judges according to the applicable standards. Rather than pressuring someone to respond by declaring in front of others that it has the same effect as refusing a police test, it is appropriate to separate the immediate judgment for driving safety from the follow-up judgment that reviews whether the procedure was proper. Police alcohol tests and workplace tests are not governed by the same rules; they must be distinguished by who requests them and the basis on which they apply.
Note: This article is general information, not legal advice on any individual case. For specific matters, consult a lawyer or other professional. Laws may be amended, so check the latest version at the Korea Law Information Center.
