Government cracks down on drunk driving / DUI

DUI – You may have heard Blade Nzimande’s festive season message from the Department of Transport on the radio recently, entreating all of us to stay safe on the roads this month and next. This follows on from the launch of the festive season road safety campaign on November 16th (read the full speech here).

Our road traffic accident record is shameful all year round, but escalates to tragic levels every festive season as tens of thousands of South Africans take to the roads to visit family or just enjoy the best our beautiful country has to offer by way of sea, bush and mountains. Last Friday night 12 people were killed on the N1 on the way to Cape Town.

During the last festive season, 1,676 people died on South African roads between December 1st, 2017 and January 15th, 2018, a slight decrease on the previous year. However, in the Western Cape, a total of 262 lives were lost on our roads between December 1st, 2017 and January 31st, 2018, an increase in deaths from the previous year, as both driver and passenger fatalities rose. Cape Town in particular sees an influx of visitors from all over the country and traffic on our roads is heaviest this time of year. It is easy for locals to get frustrated but it’s important not to allow impatience to provoke careless or unlawful driving. And there is never any excuse for drinking and driving, particularly now there is a wide choice of “drive you home” services, both taxis and designated driver service providers.

Tighter laws for DUI

Government will be introducing minimum sentences for negligent and reckless driving, as driving under the influence (“DUI”) will be reclassified from a Schedule 3 to a more severe Schedule 5 offence. This means that offenders will not get off on bail as easily as in the past, and may spend time in custody until they appear in court.

Mobile alcohol testing

Western Cape Minister of Transport and Public Works, Donald Grant, introduced two new mobile alcohol evidentiary units, in an attempt to crack down on the seasonal increase in drunk driving. Although the road safety campaign highlights all driver behaviours, the focus is on drinking and driving because of the huge role it plays in road traffic accidents and fatalities. Over 40% of drivers killed on Western Cape roads who were tested for alcohol tested positive for blood alcohol content (BAC). Furthermore, approximately 372 pedestrians were killed while under the influence of alcohol on Western Cape roads last year.

A pilot Random Breath Testing (RBT) project was launched last year, in partnership with the South African Police Services (SAPS), the Provincial Traffic Services, the Road Traffic Management Corporation (RTMC), Safely Home, the City of Cape Town, and the Traffic Services of the Cape Agulhas, Overstrand, and Theewaterskloof municipalities. This initiative was strengthened with the introduction of a Mobile Alcohol Evidentiary Unit in the Overberg, which enabled rapid on-the-spot checks to be carried out to determine if a driver is under the influence. The mobile unit removes the need to take suspects to a testing centre for a blood alcohol test and increases the likelihood of prosecution, as well as keeping more police officers on duty.

A second mobile unit is already in use by the City of Cape Town Traffic Services in the Metro; and the two new units will be deployed in the West Coast and Winelands regions.

Why are we telling you this?

We’re lawyers; we’re not in the business of making public service announcements. It’s our job to represent a client accused of a crime. So why are we telling you this? We don’t want your business…not this business anyhow. We encourage all our clients and everyone reading this page to drive safely and responsibly over the festive season. We don’t want to defend you for DUI. However, South Africa does not have a zero blood alcohol limit, and therefore it is not illegal to drink and drive. It is only illegal to drive with more than the legal limit of alcohol in your bloodstream. And so ambiguities can arise. You may be accidentally over the limit when you thought you were being very conscientious. Or the evidence gathered by police may be inaccurate or mishandled. Breath tests can be imprecise (though blood alcohol tests, properly conducted, are usually reliable).

What happens at a roadblock?

With the increase in roadside surveillance this season, your chances of being stopped at a roadblock as you go about your business are greater. So it’s important to be prepared and know what to do. It won’t help if you panic at the time. Here’s the process:

If you’re stopped at a roadblock under suspicion of driving under the influence, you will be breathalysed. What happens next depends on the type of roadside unit.

• In a conventional roadblock, if you’re over the limit you will be taken into custody and sent for a blood alcohol test.
• If you are stopped at a mobile alcohol evidentiary unit, your blood will be tested immediately. This means if you are innocent you will be released without the need for further testing. However, if you are over the limit, you are far more likely to be charged, as there will be no delay in transferring to a testing centre, which may result in a lowering of the blood alcohol level over the time elapsed. If you are over the limit you will be charged with DUI.
• You will be taken to a police station, where you will be detained in the holding cells for at least four hours to sober up.
• In the meantime, your car will be taken to the police station. It will be returned once you have posted bail. Your vehicle will only be impounded if you’ve been in an accident. In this case you would have to go to the relevant traffic department and pay the impound fees to get it back.
• You will be allowed to phone your family or a lawyer at this stage, if you haven’t already. If you’re detained, you have the right to consult your lawyer or, if you cannot afford a lawyer, you can apply for legal aid. The police must inform you of this right.
• You may be released on bail (about R500) or you may be detained until your court appearance. At this stage it is hard to predict how each individual case will be dealt with in light of the tightening of the law.

The legal breath alcohol limit in South Africa is less than 0.24 mg in 1000 ml of breath, while the legal blood alcohol limit is less than 0.05 g per 100 ml. In other words, two beers or a large glass of wine in the space of an hour can put you over the limit.

In terms of section 40 of the Criminal Procedure Act, you can also be arrested if you are the driver of a vehicle involved in an accident and you have alcohol in the car console, if your breath smells of alcohol, your eyes are bloodshot, or you are slurring your words.

Behave yourself

RBT is policy, so you have no grounds to complain that you were stopped without cause. However, if you have other reason to believe that you have not been treated lawfully or fairly (for example, if you have been made to wait an unreasonable length of time), it is still incumbent on you to be polite and act courteously at all times. Don’t raise your voice to the officer or insult him or her. If you haven’t already been arrested, this could lead to your arrest, or make matters worse for you if you have been charged.

If you’ve been unlawfully detained or caught DUI

Bail Attorneys Cape Town, SD Law & Associates are experts in criminal defence. If you have been detained at a roadblock and need advice or feel that you’ve been unfairly and unlawfully treated, contact Cape Town Attorney Simon on 076 116 0623 or email sdippenaar@sdlaw.co.za. Save the number in your phone…better safe than sorry.

Our next blog post will look at arrestee’s rights, just in case! View our blog here