We would like to share some very important insights from Justice Project SA on the testing of blood for the purpose of enforcement of drunk driving behaviour. We would also like to share the comments/ query which led to the detailed response:
Question:
I live in Barrydale and will be attending a Community Policing Forummeeting on the 9 July. One of the topics under discussion is the habit of the SAPS of stopping town folk who have been to a restaurant and put them in the back of the van if they smell of liquor. They then proceed to drive the unfortunate person 45 minutes over the Tradouw Pass (mostly at night) to Swellendam Hospital for a blood test. No preliminary breathalyzer test is done.
Most of the town folk who have been carted over the Pass at night have been well under the legal limit. My question is, is this practice legal? Can you refer me to any reference material?
Answer:
Section 65(1) of the National Road Traffic Act makes it a criminal offence to operate a motor vehicle under the influence of alcohol or a drug having a narcotic effect. The main charge does not require that any particular level of alcohol is measured in the accused person’s blood stream or on their breath however, the more common charge that is used in South Africa is that of operating a motor vehicle whilst the alcohol concentration in a blood sample is not less than 0.05g per 100ml of blood [Section 65(2)] or whilst the alcohol concentration in a breath sample is not less than 0.24mg per 1000ml of breath sampled [Section 65(5)]. Refusing a specimen of blood or breath is a criminal offence in terms of Section 65(9).
With this context in mind, I would like to offer you the following comments for submission at your Community Policing Forum and indeed, to the Station Commander of your particular branch of SAPS.
Whilst it is a criminal offence to operate a motor vehicle under the influence of any amount of alcohol or drug having a narcotic effect, SAPS and other law enforcement officials very rarely bring this charge against people they arrest. This is mainly due to the fact that they have insufficient training and experience in identifying intoxicated persons to the extent where a court would be satisfied with their testimony as to whether the accused was under the influence of an intoxicating substance at the time of the arrest.
One must bear in mind that operating a motor vehicle under the influence of alcohol or drugs is a very serious criminal offence and conviction therefore – in spite of any sentence that may be handed down by the court – is a very serious matter indeed because it involves the imposition of a criminal record, regardless of any sentence that is imposed by the court. Courts are therefore [correctly in my opinion] reluctant to convict people of this crime based on the conjecture and opinion of policemen and thus prefer to work with scientific absolutes – like a blood or breath specimen exceeding a maximum permissible limit. While this is most certainly a more scientific approach which minimises improper convictions, it is not completely devoid of problems, mainly because training and knowledge on the part of police officers is sorely lacking in South Africa and the net result is that they end up making stupid mistakes.
Police and traffic officers regularly mix up the levels for blood and breath samples and either arrest people for exceeding the blood level while they are measuring the breath level, or alternatively, let people who are well over the limit go when they are measuring the breath level. Both of these activities are problematic for obvious reasons, but just in case they are not obvious to you, I will briefly detail what they are:
- If a handheld breathalyser is set to measure blood alcohol concentrations which should be less than 0.05g/100ml sampled by extrapolation and the officer thinks that it is measuring under the breath sample standard and the equipment returns a reading of 0.15, the officer will allow that person to continue driving, thinking that they are under the limit.
- If a handheld breathalyser is set to measure breath alcohol concentrations which should be less than 0.24mg/1000ml sampled and the officer thinks that it is measuring under the blood sample standard and the equipment returns a reading of 0.15, the officer will arrest the person whose reading is below the limit because he or she thinks that it is three times the blood alcohol limit.
This is of course if a breathalyser is used at all and in your particular police station’s case, you have said that they don’t even use a handheld breathalyser before arresting people and they do so based solely on an odour of alcohol. This practice is RECKLESS at best because it opens the SA Police Service up to unlawful arrest claims on a wholesale basis. The second that a police officer deprives any person of their constitutional right to free movement, they are deemed to have arrested that person, regardless of whether they say that person is under arrest or not.
There are many things, including but not limited to the consumption of alcohol that could cause an odour of alcohol to be on the breath of a person and a “sniff test” is simply not a good idea when it comes to the prosecution of this offence. If it transpires that any person arrested by SAPS returns a blood test that establishes that their blood sample was not equal to or over 0.05g/100ml then that person will not be convicted by a court for the offence of operating a motor vehicle whilst the concentration of alcohol in their blood was not below 0.05g/100ml. They will then have the absolute right to sue the Minister or Police for false/unlawful arrest and will be successful in that litigation. Your particular police station is therefore unnecessarily exposing itself to mass litigation simply because it does not have the necessary equipment and training to enforce DUI offences!
My recommendation is that your Community Policing Forum consider raising funds and purchasing reliable, high quality handheld breathalysers for your police officers to use in these enforcement exercises and arranges for proper training of the officers that are going to use them.
As I have said, driving under the influence of alcohol or drugs having a narcotic effect is a very serious matter and it is one that deserves proper enforcement to be practiced. However, what is happening where you are is far from proper enforcement and has the potential to completely derail enforcement efforts when (not if) a proliferation of unlawful arrest civil claims start taking place and getting settled. Your station commander should be acutely aware of the fact that his or her performance appraisal will also take into account the claims for unlawful arrest that are brought against the station and therefore, what he or she is allowing to happening right now could prove to be a career-limiting move. Similarly, if a flood of unlawful/false arrest claims start coming in, there is a significant risk that alcohol enforcement will be ceased altogether in order to avoid such litigation and that simply cannot be viewed to be a good thing.
With respect to the residents of your community, please be sure to tell them that JPSA actively supports and encourages a ZERO ALCOHOL WHEN YOU ARE GOING TO BE DRIVING policy. Consuming ANY amount of alcohol (or drugs) before driving is very dangerous indeed and could land you in very hot water – or indeed, in hospital or the mortuary.
I have appended the entire text of Section 65 of the National Road Traffic Act under my signature for your information and have copied my reply to interested persons in this matter.
Howard Dembovsky
National Chairman – Justice Project South Africa (NPC)
The LAW
65 Driving while under the influence of intoxicating liquor or drug having narcotic effect, or with excessive amount of alcohol in blood or breath
(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 millilitres, or in the case of a professional driver referred to in section 32, not less than 0,02 gram per 100 millilitres.
(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 millilitres 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 millilitres 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 millilitres, it shall be presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,02 gram per 100 millilitres at the time of the alleged contravention.
(4) Where in any prosecution in terms of this Act proof is tendered of the analysis of a specimen of the blood of any person, it shall be presumed, in the absence of evidence to the contrary, that any syringe used for obtaining such specimen and the receptacle in which such specimen was placed for despatch to an analyst, were free from any substance or contamination which could have affected the result of such analysis.
(5) 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 breath exhaled by such person is not less than 0,24 milligrams per 1 000 millilitres, or in the case of a professional driver referred to in section 32, not less than 0,10 milligrams per 1000 millilitres.
(6) If, in any prosecution for a contravention of a provision of subsection (5), it is proved that the concentration of alcohol in any specimen of breath of the person concerned was not less than 0,24 milligrams per 1 000 millilitres of breath taken 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 0,24 milligrams per 1 000 millilitres at the time of the alleged contravention, or in the case of a professional driver referred to in section 32, not less than 0,10 milligrams per 1000 millilitres, it shall be presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,10 milligrams per 1 000 millilitres at the time of the alleged contravention.
(7) For the purposes of subsection (5) the concentration of alcohol in any breath specimen shall be ascertained by using the prescribed equipment.
(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.
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