What you need to know about consuming alcohol and drugs, and the law

It's a widely known fact that South Africans in general (not all of them) have a love affair with alcohol. If the truth be but known, there's also a large contingent of South Africans who have an equally passionate love affair with drugs. In fact, a study conducted by a scientist at the CSIR all the way back in 1998 revealed that at least three times as many people who drive under the influence of alcohol, drive under the influence of drugs.

Maybe, no - definitely, this goes some way to explaining why South Africa has one of the worst road fatality rates in the world and the second highest in Africa. You see, the problem is that there's few people who won't think they "can handle it", until they get proven wrong. Even when they are proven wrong, many will continue to hold the belief that they can indeed handle it and that's part of the reason why convicted drunk drivers are often found crashing, and sometimes killing other people... again.

Let me put you in the picture about what the law says and what many people don't know, starting with the most obvious of all, driving under the influence of alcohol or drugs having a narcotic effect. 

Driving under the influence of alcohol or drugs having a narcotic effect

Section 65(1) of the National Road Traffic Act, 93 of 1996 (NRTA) makes it a criminal offence to drive a vehicle or occupy the driver's seat with the engine of a motor vehicle running while under the influence of intoxicating liquor or a drug having a narcotic effect. Note a couple of things here:

  • A "vehicle" includes a bicycle, a skateboard, or anything else that has wheels.
  • To be "under the influence of intoxicating liquor or a drug having a narcotic effect" you don't have to have consumed a specific amount, you just need to be considered (by a doctor usually) to be under the influence of one of those.
  • Even a single hit of marijuana, a little ecstasy, etc will show up in a blood sample and that will be enough to convict you.

Although law enforcement authorities rarely charge anyone using Section 65(1) of the NRTA, the fact is that this offence does exist. So watch out!

 

It is however more common for law enforcement agencies to prosecute people based on blood or breath alcohol samples, except that currently, the only forensic evidence being used in prosecutions is blood samples.

 

Blood Alcohol Content (BAC)

Section 65(2) of the NRTA makes it an offence to drive a vehicle or occupy the driver's seat with the engine of a motor vehicle running while a sample of your blood is not:

  • LESS THAN 0,05g/100ml of blood sampled if you are an ordinary driving licence holder; or
  • LESS THAN 0,02g/100ml of blood sampled if you are the holder of a Professional Driving Permit (PrDP).

In order for a blood sample to be used in evidence, it must be taken within 2 hours of arrest.

 

Breath Alcohol Content (BrAC)

 

Section 65(4) of the NRTA makes it an offence to drive a vehicle or occupy the driver's seat with the engine of a motor vehicle running while a sample of your breath is not:

  • LESS THAN 0,24mg/1000ml of breath sampled if you are an ordinary driving licence holder; or
  • LESS THAN 0,10mg/1000ml of breath sampled if you are the holder of a Professional Driving Permit (PrDP)

In order for an evidential breath sample to be used in evidence, it must be taken within 2 hours of arrest.

 

It is illegal to refuse a breath or blood sample

 

Section 65(9) of the NRTA states that "No person shall refuse that a specimen of blood, or a specimen of breath, be taken of him or her." If you do, not only can you be forcible held down while a needle is stuck in your arm (after you have been arrested and a docket opened) but you can also be prosecuted for refusing it.

 

Alcohol screening at the roadside

The first thing you need to understand is that a handheld alcohol screening device (breathalyser) is not an evidential breath testing device, even if it's manufacturer is Dräger. The second thing you need to understand is that handheld alcohol screening devices are either set up to produce a breath alcohol alcohol level or extrapolate the reading to a blood alcohol level. 

 

It is extremely unfortunate that this is allowed in South Africa because it leads to confusion and many false arrests where law enforcement officers presume that the reading is that of a blood alcohol level. A breath alcohol level of 0,09 for example would appear to be almost double the blood alcohol limit for an ordinary driver and more than four times the limit for a professional driver, where in fact it is below the limit for both types of driver.

 

Similarly, if a blood alcohol reading is produced but the law enforcement officer presumes that it is a breath alcohol reading, he or she may let a drunk driver proceed unhindered.

 

Then there comes in the other nasty little problem that some people like to call "challenges" - that of bribe solicitation. Corrupt cops will use a breath alcohol level reading to convince people that they are way over the limit but if they pay, they can continue on their journey without being nailed. It's a very effective little tool for corrupt cops and a lot more common than anyone would like to admit. I'm not saying they don't let real drunk drivers go in return for a bribe, or cool drink, or whatever other thing they choose to call it, they do, but what I am saying is that if you are breathalysed and you know damn well you haven't had enough to hit the limit, don't be conned.

Alcohol testing at an evidential breath testing centre

In 2012, the use of evidential breath testing in evidence in our courts was suspended. There are some who, like me feel this was a great pity and that what gave rise to it (improperly trained/incompetent operators) was an even bigger pity. There are of course also those who feel that this was the best thing that could have ever happened in South Africa.

Although the use of evidential breath testing was suspended, it is set to make a comeback sometime in the future, hence why I am including this section. The name Dräger is not a substitute for "evidential breath testing equipment", no matter how much anyone, including but not limited to the Minister of Transport chooses to pretend it is. Dräger is a German manufacturer of all sorts of electronic equipment, some of which is designed for alcohol and drug screening/testing. The evidential versions of alcohol and drug testing equipment they manufacture are both, expensive and a minute part of their product range.

My standpoint on the matter is that evidential breath testing prevents the gross injustice of people who are not under the influence of alcohol being detained in police cells on bogus charges and where people are under the influence of alcohol, their trials can proceed without the huge delays and endless postponements that arise from inefficiencies in State laboratories. 

This does not mean that I am for one moment suggesting that South Africa should forge blindly ahead with bringing it back without fixing what was wrong with it in the past. The Technical Committee For Standards and Procedures (TCSP) for alcohol breath testing, headed by Advocate Christinus van der Vijfer is currently busy finalising a full set of standards for evidential breath testing equipment and the procedures to be followed when using it. When this is finalised, evidential breath testing will come back into effect.

Detention, bail and trial

 

If you are arrested and charged with driving under the influence of alcohol or drugs, you will be detained in police cells. A docket will be opened and a SAPS CAS number assigned for it. Your fingerprints will be taken and a warning statement will be taken from you. You will also be taken to a clinic or State mortuary for a blood sample to be drawn.

It is possible that you will be released on bail where you will be given the date on which and the Magistrates Court in which you will have to appear. You will most definitely not be released on bail earlier than four hours after your detention since SAPS Standing Orders dictate that you must be detained for a minimum of four hours to sober up. In reality, it's often much longer than this. The police are however not obliged to set bail for you and they may detain you for a maximum of 48 hours, or up to the first court date thereafter, if it happens over a long weekend or other public holiday period.

When you stand trial the State will present its case against you and then your defence will be presented by your legal representative, if you choose to have one defend you. If you cannot afford a legal representative, the State must provide one for you. Trials for driving under the influence of alcohol are typified by postponements, awaiting the results of the blood test and some are even provisionally withdrawn, for reinstatement when the blood tests eventually come in.

 

Sentences for driving under the influence of alcohol or a drug having a narcotic effect


If you are convicted for either one of these offences you will be be liable to a fine or to imprisonment for a period not exceeding six years. This is of course provided that you don't kill someone, in which case you will also be prosecuted for culpable homicide. You may even be prosecuted for murder.

 

In addition to this, Section 35 of the NRTA holds that the judicial officer (Magistrate or Judge) must suspend your driving licence for a minimum period of six months on first conviction, five years on second conviction and ten years on a third or subsequent conviction.

 

You will also incur a permanent criminal record which will really mess up the rest of your life, prevent you from getting a travel visa to many countries and will probably exclude you from employment opportunities.

 

Advice about drinking and driving

 

The very best advice I can give you is "don't even consume a drop of alcohol if you are going to have to drive". Human beings have different metabolisms and as a result, alcohol is metabolised and eliminated at different rates in each human being. The favourite answer of "yes officer, I had two beers with my lunch/supper" used by those who incorrectly think that the limit is two beers is a sure-fire way to get yourself into trouble. The same goes with wine. 

 

If you really have to consume alcohol before driving, and I maintain that there is no such thing as "have to", go and educate yourself about it at the South Africans Against Drunk Driving (SADD) website, but trust me when I say that you are looking for trouble if you don't adopt a "no alcohol any time even remotely close to driving" policy. 

 

Although our law allows you to consume alcohol and then drive there is actually a very good reason why the "limits" are what they are and this is to exclude the possibility of a person who is not actually under the influence of alcohol from being convicted. As for drugs, don't touch them at all since, besides them being damn dangerous, you will be convicted if you are tested and found to have any level of drugs having a narcotic effect in your system.

This is not me sermonising or moralising. It is genuine, good advice and if you decide to take it for no other reason than self-preservation, then that's quite alright too. Always remember that the second you consume any amount of an intoxicating substance, your driving ability is affected no matter how tough you think you are, and you could kill or injure someone - and that someone could very easily be you! Even if you don't, a stay in police cells is far from a pleasant experience unless your idea of fun is cuddling up with other criminals.

 

Okay, so now I have dealt with driving under the influence of alcohol, is that the be all and end all of it? Most certainly not!

"Drunk" in public and consuming liquor in public

Most people think it's perfectly okay to go to a bar and get drunk, but did you know that a licensed premises form part of the definition of a "public place" in terms of provincial alcohol legislation? You can just as easily be arrested, charged and detained for being drunk in a bar or restaurant as you can be for being drunk in the street.

When police arrest people for being "drunk in public" they are not compelled to take any breath or blood samples. They can arrest you based on a subjective opinion, register a criminal case against you, detain you, fingerprint you and then either encourage you to pay an admission of guilt fine or appear in court.

Just like with driving under the influence of alcohol, the minimum period that police will detain you is four hours. In reality, it's often much longer than this. When they come to release you, they will very rarely offer to release you on bail. They will more than likely tell you that you have to "pay the R300 [fine for this offence] and then you can go". They will take your money and give you a J70a (yellow) receipt. They will then let you go and I can assure you that most people leap that this opportunity. 

But it's what they do after that which most people don't commonly know that they do... until it's too late. The will register a criminal record against your particulars and unless you take the matter on review to the High Court, that criminal record will follow you around for a minimum of ten years before you can make an application to the Department of Justice to have your record expunged.

Although it is off topic, it's best to know that this can and does frequently happen with any minor offence for which people are arrested, charged and fingerprinted. It also happens when J534 Section 56 notices are issued by police so watch out!

You are therefore strongly advised not to pay an admission of guilt fine without seeking competent legal advice.

I would also like to encourage you to join JPSA in order to help ensure our continued survival and our ability to bring you information like this. Too many people take it for granted that we will always be around to help, but I assure you that, just like you, we too cannot survive without money.

About the author...

Howard Dembovsky is a former policeman and is the Chairperson of Justice Project South Africa. 

Appeal

Please consider joining JPSA if you are not already a member so we may continue to bring you information the authorities choose to withhold from you. Believe it or not, we too have expenses. You can join JPSA at https://www.jp-sa.org/join.asp.

Disclaimer

The information and advice contained in this advisory is intended for information purposes and is published in the interests of assisting members of the public to understand the content material. It is not intended to be nor does it constitute legal advice. To our knowledge, all of the information in it is true and correct, however taking reliance in any of the information in it is entirely at your own risk.

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