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