DRIVING UNDER THE INFLUENCE | YOUR RIGHTS

BLOOD ALCOHOL LIMITS

The South African Road Traffic Act 93 of 1996 has been in effect since March 1998. These laws are in place to help protect the community and to make sure that drunk drivers are reprimanded.

• The legal blood alcohol limit in South Africa is less than 0.05 g per 100 ml
• The legal breath alcohol limit in South Africa is less than 0.24 mg in 1000 ml of breath

In simple terms, this means that 2 drinks over the space of 1 hour will put you over the limit. Below is an approximate breakdown of alcohol units per drink type:

• 1 x 75 ml glass of wine = 1 unit
• 1 x 250 ml glass of wine = 3.3 units
• 1 x shot/shooter = ½ unit in most instances
• 1 x spirit cooler = about 1.25 units
• 1 x beer = 1.5 units or possibly more
• 1 x cider = 2 units
• 1 x 25 ml tot of spirits = 1 unit
• 1 x cocktail = Between 2 and 4 units

DRIVING UNDER THE INFLUENCE OF LIQUOR AS A CRIMINAL OFFENCE

Section 65 of the National Road Traffic Act 93 of 1996 prohibits driving while under the influence of intoxicating liquor or drugs having a narcotic effect, or with excessive amount of alcohol in blood or breath and the stipulations are as follows:

“(1) No person shall on a public road –

(a) drive a vehicle; or

(b) occupy the driver’s seat of a motor vehicle the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.

(2) No person shall on a public road –

(a) drive a vehicle; or

(b) occupy the driver’s seat of a motor vehicle the engine of which is running, while the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 gram per 100 milliliters, (or in the case of a professional driver referred driver to in Section 32, not less than 0,02 gram per 100 milliliters).

Section 65 (3) of the National Road Traffic Act, Act 93 of 1996 stipulates the following regarding blood samples in cases of driving under the influence of liquor:

“(3) If in any prosecution for an alleged contravention of a provision of subsection (2), it is proved that the concentration of alcohol in any specimen of blood taken from any part of the body of the person concerned was not less than 0,05 gram per 100 milliliters at any time within two hours after the alleged contravention, it shall be presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,05 gram per 100 milliliters at the time of the alleged contravention, or in the case of a professional driver referred to in Section 32, not less than 0,02 gram per 100 milliliters, it shall be presumed, in the absence of evidence to the contrary, that such concentration was no less than 0,02 gram per 100 milliliters at the time of the alleged contravention.”

“The State has to prove that a concentration of alcohol not less than 0, 05 was present during the act of driving or occupancy.”

Section 65(3) contains a presumption which serves to alleviate the task of the State.

It stipulates that if it is proved that the concentration of alcohol was not less than 0,05 within two hours after driving or occupancy, it shall be presumed that it also exceeded 0,05 during the act. This presumption obviates the leading of expert evidence in every case to prove the concentration of alcohol during the act. The accused person, if it is proved that the concentration was not less than 0, 05 within two hours of the act, shall have to prove the contrary on a balance of probabilities.

Many factors have vital roles to play in this regard, such as time of drinking, physical characteristics of the accused, factors which may influence the absorption of alcohol in the bloodstream, time lapse between drinking and driving, or of the taking of a blood sample. If the blood sample was taken more than two hours after the act the presumption will not assist the State and expert evidence will have to be adduced.

THE ARRESTING PROCEDURE

The arresting procedure as stipulated by Section 40 of the Criminal Procedure Act, Act 51 of 1977 (South Africa, 1977) is as follows:

“(1) A peace officer may without a warrant arrest any person – (a) Who commits or attempts to commit any offence in his presence.”

2) If a person may be arrested under any law without warrant and subjected to conditions or the existence of circumstances set out in that law, any peace officer may without warrant arrest such person subject to such conditions or circumstances.

This means that a police official and traffic official may without a warrant arrest any person who is driving a motor vehicle whilst under the influence of liquor in terms of section 40 of the Criminal Procedure Act.

“Police officials have the powers and duties of traffic officials but traffic officials do not have the powers and duties of police officials. Traffic officials’ powers and duties are regulated by the National Road Traffic Act, 93 of 1996.”

Section 42 of the Criminal Procedure Act stipulates as follows:

“(1) any private person may without warrant arrest any person –

(a) Who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in schedule 1”.

“Driving under the influence of liquor is a schedule 2 offence and not a schedule 1 offence. A private person can only arrest a person for a crime mentioned in schedule 1 and not for driving under the influence of liquor.”

Section 50 of the Criminal Procedure Act stipulates the procedure after a person has been arrested. Section 50 (South Africa, 1977) reads as follows:

“(1) (a) Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, shall as soon as possible be brought to a police station, or in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.

(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.”

This means that a police official and traffic official, after the arrest of a person for driving under the influence of liquor, must take the arrested person to a police station for the registration of a case and detention.

Traffic officers are appointed in terms of the National Road Traffic Act and not in terms of the South African Police Act. This means that traffic officers do not have the same powers as police officials. It is clear that section 37 of the Criminal Procedure Act authorises police officials only (and not traffic officers) to request a medical practitioner or nurse to draw a blood sample from people who are arrested for driving under the influence of liquor.

In terms of the Act, traffic officers should, therefore, after the arrest of a driver take the arrested person to a police station for detention. The responsibility is then on the police officials to ensure that a blood sample is obtained from the arrested person on the request of the police officials in terms of section 37 of the Criminal Procedure Act of 1977.

If you are caught and suspected of being over the legally allowed amount of alcohol, traffic authorities are allowed to take a specimen of your breath which needs to be less than 0,24 milligrams per 1000 milliliters of breath at any time within two hours of the alleged contravention. Following this, if your exceed the allowed limit authorities are then allowed to detain you for further evaluation involving a blood test – you are not allowed to refuse this and the authorities are well within their rights to restrain you if necessary.

“(8) Any person detained for an alleged contravention of any provision of this section shall not-
(a) during his or her detention consume any substance that contains alcohol of any nature, except on the instruction of or when administered by a medical practitioner;
(b) during his or her detention smoke until the specimen referred to in subsection (3) or (6) has been taken, as the case may be.
(9) No person shall refuse that a specimen of blood, or a specimen of breath, be taken of him or her.”

RIGHT TO LEGAL REPRESENTATION

In terms of section 35(2), everyone who is detained has the right to:

“(b) choose, and to consult with a legal practitioner, and to be informed of this right promptly,

(c) have a legal practitioner assigned to him by the state and at state expense if substantial injustice would otherwise result, and to be informed of this right promptly.”

A detainee must be informed of his rights to counsel promptly.

Section 73(1) of the Criminal Procedure Act furthermore provides that an accused is entitled to assistance by his legal advisor as from the time of arrest. The accused must at the time of his arrest be informed of his right to be represented at his own expense by a legal adviser of his own choice, and if he cannot afford legal representation that he may apply for legal aid. The accused must also be informed of the institutions that he may approach for legal assistance

Section 10(b) imposes three duties on state authorities who arrest or detain persons.

“The duties are
  • to inform the detainee of the right to retain and instruct counsel without delay,
  • to provide a reasonable opportunity to exercise the right, and
  • to refrain from eliciting evidence from the detainee until the reasonable opportunity has been exercised.”

There are a few exceptions to this rule.

  • The police only have a duty to hold off where the detainee is sufficiently diligent in pursuing his right to counsel after being informed of this right.
  • The exceptions also include where a suspect is too drunk to exercise his right, and
  • where a suspect was ‘rude and obnoxious towards police’.

What constitutes a reasonable opportunity will depend on the surrounding circumstances.

The circumstances that effect the determination of what is a reasonable opportunity include

  • the availability of counsel of choice,
  • the existence or non-existence of free legal aid and the existence of duty counsel.

Each of these circumstances may effect what constitutes reasonable diligence of a detainee in pursuing the right to counsel which will in turn effect the time period during which the authorities’ ‘implementational’ duties will require them to hold off from trying to elicit incriminating evidence from the detainee.

The fact that the detention is late at night and counsel of choice is not available, or the fact that duty counsel is not available in the particular jurisdiction will for example serve to extend the period in which a detainee will have been found to have been duly diligent in exercising his right to counsel.

There may be compelling and urgent circumstances where the police, despite the detainee not being able to contact his lawyer due to unavailability, will not be required to hold off. However, the two-hour evidentiary presumption in the context of impaired driving cases does not, by itself, constitute such a compelling or urgent circumstance.

Urgency is not created by mere investigatory and evidentiary expediency where detainees have indicated their desire to procure counsel and have been duly diligent in exercising their right to counsel. The loss of this presumption is one of the prices that have to be paid by governments who do not have a system of free, preliminary legal advice to detainees on a twenty four hour basis.

YOUR RIGHTS

“You have the right to establish the identity and legitimacy of any law enforcement official. You may demand to see their appointment certificate (identity card).”

The Criminal Procedure Act is very clear in stating that an officer who cannot or will not provide an appointment certificate on demand is in violation of the Act and that any actions that he or she takes will be unlawful if such a certificate is not provided.

No matter what you have been accused of doing, you have the right to be treated with dignity.

“A law enforcement officer may not:
  • insult you,
  • swear at you or otherwise treat you in anything less than a dignified fashion.
Similarly, you may not affront their dignity.”

A male officer may not physically search a female and vice versa.

A physical search does not allow for groping or “feeling off” and any such action constitutes abuse.

The Constitution forbids arbitrary search and seizure of your person, your property or possessions. If you are stopped by law enforcement officials they must have a valid belief that you may have been involved in the commission of a crime and that a search warrant would be issued by a Magistrate or Judge if they wish to search you or your vehicle and/or seize your possessions.

This applies to “random pull-overs” where you are singled out by law enforcement authorities.

It does not apply to properly constituted roadblocks where search and seizure is in fact authorised prior to the roadblock being set up.

If you are arrested, you must be informed of your rights immediately when you are arrested. Failure to inform you of your rights could constitute unlawful arrest later down the line.

You are allowed to make a phone call and if you are left with your cell phone, make sure that you make such a phone call as soon as possible after your arrest. It is sometimes wiser to send an SMS message or to send out a “panic” SMS to your loved ones and/or other people who can take the appropriate action.

If you are detained, you have the right to be brought before a court within 48 hours of your detention.

“In most cases, you will have the right to apply for and be granted bail at the police station.”

It is only in the case of serious crimes that your application for bail can only be heard by a court.

 

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