If the driver disagreed with the Drager result, the police must ensure an examination at the hospital
The Ivano-Frankivsk Court of Appeal canceled the decision of the local court, which fined the driver 17,000 UAH and deprived him of the right to drive vehicles for one year for driving under the influence of alcohol.
The Court of Appeal concluded that after the driver expressed disagreement with the on-site examination result using the Drager device, the police officers, according to part 3 of article 266 of the Code of Administrative Offenses, were obliged to ensure the examination was conducted at a healthcare facility. However, this was not done.
The court emphasized that such a procedural violation is serious and, according to part 5 of article 266 of the Code of Administrative Offenses, invalidates the conducted examination. Therefore, the Court of Appeal canceled the first instance court's decision and closed the proceedings based on point 1 of part 1 of article 247 of the Code of Administrative Offenses.
Case circumstances
The Yaremche City Court found the driver guilty of driving a vehicle under the influence of alcohol under part 1 of article 130 of the Code of Administrative Offenses.
According to the case materials, on April 14, 2026, in the village of Polianytsia, the driver of a BMW 316i was stopped by police officers and tested on-site using a Drager gas analyzer. The device showed 1.52 per mille of alcohol, after which the first instance court imposed a fine of 17,000 UAH and deprived the driver of the right to drive vehicles for one year.
The defense attorney appealed this decision. In the appeal, he stated that the driver did not fully agree with the examination result, and the police officers, contrary to the requirements of article 266 of the Code of Administrative Offenses, did not ensure a medical examination at a healthcare facility. Furthermore, according to the defense, the referral for medical examination in the case materials was formal, as there was no evidence that it was handed to the driver or that the examination was organized.
During the appeal hearing, the driver explained that he had not consumed alcohol that day, did not fully agree with the Drager result, and was not offered to undergo an examination at a medical institution.
What the Court of Appeal established
After reviewing video recordings, the Court of Appeal established that after the test, the driver informed the police officers that he "did not fully" agree with the examination result.
Under such circumstances, the court noted, according to part 3 of article 266 of the Code of Administrative Offenses, the examination should have been conducted at a healthcare facility.
However, the police officer did not offer to undergo such an examination nor organized it. Instead, he informed the driver that he could undergo a medical examination privately.
The Court of Appeal recognized that such behavior of the police officer is a gross procedural violation, as the law explicitly imposes on him the duty to ensure a medical examination if the person disagrees with the on-site test results.
The court in case 354/611/26 also noted that part 5 of article 266 of the Code of Administrative Offenses is imperative and explicitly states that an examination conducted in violation of the established procedure is invalid.
The panel noted that the first instance court acknowledged procedural violations but mistakenly concluded that they did not affect the rights and freedoms of the person or the validity of the examination results.
Court conclusion
The Court of Appeal concluded that the on-site examination is invalid due to the procedural violation stipulated by article 266 of the Code of Administrative Offenses. Therefore, the local court's conclusion about the presence of an administrative offense in the driver's actions does not correspond to the case circumstances and legal requirements.
Referring also to article 62 of the Constitution of Ukraine, according to which unproven guilt is equated with proven innocence, the Court of Appeal canceled the decision of the Yaremche City Court and closed the proceedings based on point 1 of part 1 of article 247 of the Code of Administrative Offenses.
The Court of Appeal's decision is final and not subject to appeal.
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