大法官於101年5月18日公布釋字第699號解釋，針對「道路交通管理處罰條例第35條汽車駕駛人拒絕酒測吊銷其駕照、禁其三年內考領駕照，並吊銷所持有各級車類駕照之處罰規定」，認為系爭規定與憲法第23條比例原則尚無牴觸，且與憲法保障人民行動自由權及工作權之意旨無違。大法官雖作出合憲性解釋，惟在解釋理由書文末中指出：「…另系爭條例有關酒後駕車之檢定測試，其檢測方式、檢測程序等事項，宜以法律或法律明確授權之規範為之，相關機關宜本此意旨通盤檢討修正有關規定…」。依法治國依法行政原理，國家實施干預人民自由權利的公權力措施時，應有明確法律依據，法律的實體與程序都應具備實質正當性。本文擬針對取締酒後駕車，探討執法機關發動酒測措施之法定構成要件及檢測程序。首先論述取締酒後駕車所涉及之人民基本權與公益因素之考量，次就取締酒後駕車之法令，依制裁、職權、行政強制及救濟法，分別論述其相關法令，進而檢視目前取締酒後駕車相關法制，就全面酒測攔檢之適法性、干預措施有無違反法律保留原則、酒測恪遵正當法律程序、酒駕拒測與強制抽血、駕駛人酒後生理協調平衡檢測等議題研析論述，從而提出結論，以供實務機關參考。

According to the Justices Interpretation Document No. 699 promulgated on May 18, 2012 regarding “Article 35 of Road Traffic Management and Penalty Act is a penalty regulation code imposed on any vehicle driver who refused to take the sobriety test by suspending his driver’s license, prohibiting him from taking the driver’s license test within a period of three years, and suspending all classes of vehicle licenses.”, the above constitutional explanation does not contravene the principle of proportionality of Article 23 of the Constitution, nor does it violate the constitutional safeguards of people’s freedom of movement and right to work. Although the Justice Interpretation acknowledges the compliance with the Constitution, it nevertheless states in the Reasoning section of the Interpretation that “With regard to the examinations of the Disputed Regulation testing driving under influence, the methods, procedures and other pertinent issues should be in accordance with the law or clearly legally authorized regulations; and the competent authorities should conduct and specify an overall review to amend the relevant provisions with this intention in mind.” According to the principles of rule of law, when law enforcement implements measures that intervene with the constitutional rights of the people’s freedom of movement, not only it should be in accordance with the law, but also both the regulations and the procedures should be explicitly authorized by law. This study first explored the considerations on the people’s basic rights and protection of public interests in the enforcement process against drunk driving. Secondly, this study addressed the respective relevant regulations pertaining to enforcement against drunk driving in accordance with sanctions, powers, administrative enforcement and Relief Act so as to conduct an in-depth examination of the relevant laws on enforcement. Areas under discussion in the study were such issues as the appropriateness of pull vehicles over for sobriety tests, intervention measures violating the principles of legal reservation, conducting the sobriety tests in full compliance with legal procedures, refusal to cooperate with sobriety tests and conducting blood tests by force, and physiological balance of driver under influence. Through the analysis of these issues, this study drew a conclusive result providing references and suggestions to the law enforcement departments.