Is failure to comply with a request for an alcohol test an act of resisting a law enforcement officer?
(Baonghean.vn) - Mr. DSD in Vinh city asked: My nephew was driving a motorbike and was asked by the traffic police to check his alcohol level but he did not comply and left his motorbike at the checkpoint and left. In this case, is it considered resisting a law enforcement officer and what is the penalty?
Reply:Resisting a person on official duty is (the act of) obstructing a person on official duty from performing his/her duties by using force, threatening to use force or forcing that person to perform an illegal act.
Article 330 of the 2015 Penal Code, amended in 2017, stipulates:
1. Anyone who uses force, threatens to use force or uses other means to prevent a public official from performing his or her official duties or forces him or her to commit an illegal act shall be subject to non-custodial reform for up to 03 years or imprisonment from 06 months to 03 years.
2. Committing a crime in one of the following cases shall be punishable by imprisonment from 02 years to 07 years:
a) Organized;
b) Committing the crime 02 times or more;
c) Inciting, enticing, or inciting others to commit crimes;
d) Causing property damage of VND 50,000,000 or more;
d) Dangerous recidivism".
Thus, the case of Mr. DSD's nephew is not considered an act of resisting a person on duty. However, according to the provisions of Point e, Clause 8, Article 6, Decree 100/2019/ND-CP (amended in Decree 123/2021/ND-CP), a motorcyclist who does not comply with the request of the traffic police to check for alcohol concentration can be fined up to 8 million VND. At the same time, the driver's license will be revoked for 22 - 24 months.
