This paper discusses the legal problems and issues that would arise if Germany were to introduce breath alcohol tests. German legislation and jurisdiction have hitherto tested for blood alcohol limits in cases of suspected drunken driving. During the last few years, technical progress in breath alcohol devices has caused increasing public discussion in Germany, leading to proposals to replace blood tests by breath tests. The following considerations are relevant: (1) compulsory blood sampling does not violate the German constitution; (2) it is not yet clear whether a compulsory breath test violates it; (3) a compulsory breath test against the will of a suspect is physically impossible; (4) in cases of refusal, blood samples must still be drawn. Thus it will not be possible to replace blood samples totally by breath tests. Problems are also caused by the facts that current German law on drink driving is formulated in terms of specific blood alcohol count levels, and that there is no reliable convertibility between these levels and breath alcohol levels. Any new German law, specifying an offence only from measured breath alcohol levels, would be unenforceable.
Abstract