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A legislation made on smelling of liquor: Erroneous in the context of scientific novelty after four decades

Authors:

Sarathchandra KODIKARA ,

University of Peradeniya, LK
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S. Wijerathne,

Teaching Hospital, Kandy, LK
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K.M. Kudagama,

Teaching Hospital, Rathnapura, LK
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R.P. Jayasooriya,

Base Hospital, Mahiyanganaya, LK
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A. Dayapala,

Base Hospital, Avissawella, LK
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D. Subasinghe

Private lawyer, LK
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Abstract

Science has evolved radically during last few decades. Therefore, certain legislation made in the history, based on the scientific knowledge during that era, should be reviewed in the context of innovations in the field of science. Section 11 of the ‘Offences committed under the influence of liquor (special provisions) act no. 41 of 1979’ states that ‘A person shall be presumed to be under the influence of liquor if at or about the time of the commission of the act he is smelling of liquor …. unless evidence to the contrary has been adduced.’ An endorsement to the presence of breath smelling of alcohol by the medical expert in the Medico-Legal Examination Form could lead to a conviction under this act. Ethyl alcohol is almost odorless and its smell perceived is actually due to the presence of volatile substances called congeners, produced simultaneously during the process of fermentation of ethyl alcohol. Therefore, the odor of alcohol frequently detected on people after consumption of alcoholic beverages is not due to alcohol but to byproducts of alcohol manufacture or congeners. In addition, this odor may persist in the tissues for several hours after all alcohol has been eliminated. Therefore, the legal presumption that alcohol is present in blood, based upon smell of liquor is erroneous. Conviction upon smelling of liquor should be stopped with immediate effect and the said legislation should be amended. Further the Medico-Legal Examination Form should also be amended in this regard.
How to Cite: KODIKARA, S., Wijerathne, S., Kudagama, K.M., Jayasooriya, R.P., Dayapala, A. and Subasinghe, D., 2020. A legislation made on smelling of liquor: Erroneous in the context of scientific novelty after four decades. Sri Lanka Journal of Forensic Medicine, Science & Law, 11(2), p.None.
Published on 04 Dec 2020.
Peer Reviewed

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