[Random breath alcohol screening? Comments on the decisions of the 30th German Traffic Legislation Workshop (29 to 31 January 1992 in Goslar)].

When breathalyser tests are used to detect whether a person in charge of a vehicle is incapable of activing due to the influence of alcohol. The difficulties which arise are not limited to the extent to which these modern methods are forensically sound but extend to the question whether it is legally permissible to implement random breathanalysing. It is doubtful whether a duty to take a breath test, as yet unrecognized by the law (cf. section 36 Abs. 5 StVO), would be in conformity with the constitution. According to the established case-law of the Constitutional Court nobody can be compelled to put himself in danger of incriminating himself under the criminal law by their own act (under the principle "nemo tenetur se ipsum accusare"), which in this case would be a hard and prolonged breath into a breathalyser. The author sets the strict legal limits within which random breathalysing may be enforced.