Drunk driving and the law

07 Feb 2018

Many of us have been in the situation where we have ended up at a get-together with friends, loved ones or work colleagues and have recklessly partaken in impulsive merriment that has ended up in us getting behind the wheel after one too many drinks – the old saying, “One for the road” comes to mind.

How much is “one too many”?

According to News24 in an article entitled “SA – Worst in the world for drunk driving”

“An international survey undertaken in 2015 revealed that South Africa had the highest number of drunk driving incidents at 58% with Canada next on 34% and China the least on 4%”

Section 65 of the National Road Traffic Act 93 of 1996 (the “NRA”’) sets out the legal limits and prohibitions for driving whilst under the influence. It provides that no one shall drive or even occupy the driver’s seat of a motor vehicle (with the engine running) on a public road if their blood alcohol content is over the legal limit.

The NRA differentiates between normal drivers and professional drivers (those drivers who hold professional driving permits). For normal drivers, the concentration of alcohol in any blood specimen must be less than 0,05 gram per 100 millilitres, and in the case of a professional driver, less than 0,02 gram per 100 millilitres. The concentration of alcohol in any specimen of breath exhaled must be less than 0,24 milligrams per 1 000 millilitres, and in the case of a professional driver, less than 0,10 milligrams per 1 000 millilitres.

Simply put, the rule of thumb is a maximum of one unit of alcohol per hour, which constitutes 10ml of pure alcohol, based on an adult weighing 68kg. Our bodies can only process or break down one unit of alcohol each hour. However, it is important to be aware that if you weigh less than 68kg your body will need more time to process the same amount of alcohol.

To put this into perspective, the Automobile Association (the “AA”) says the following:

“Alcohol significantly slows reaction time and distorts your vision, and the effects of a heavy night of drinking could well affect your driving ability the next morning, and you may still even be over the legal limit. After only one unit of alcohol, your chances of being in an accident are doubled, and when you are at the legal limit of 0.24mg, you are four times more likely to be in an accident.”

How do I know what represents one unit of alcohol (in layman’s terms)?

Here is an approximate breakdown of alcohol units per drink type:

1. 1 x 75 ml glass of wine = 1 unit
2. 1 x 250 ml glass of wine = 3.3 units
3. 1 x shot/shooter = ½ unit in most instances
4. 1 x spirit cooler = about 1.25 units
5. 1 x beer = 1.5 units or possibly more
6. 1 x cider = 2 units
7. 1 x 25 ml tot of spirits = 1 unit
8. 1 x cocktail = Between 2 and 4 units

According to Dr Charles Parry of the Alcohol and Drug Abuse Research Group under the Medical Research Council (MRC) “40% of drivers who die on the road have alcohol levels in excess of .08 gms / 100 ml”, significantly above the legal limit.

Are there any quick fix sobering solutions?

#askingforafriend

In case you are wondering, or innocently “asking for a friend” – are there any quick-fix solutions? The simple answer is no. The search for a way to sober up fast is an endless one. There are many tall tales and secret recipes out there that claim to have solved this problem. Unfortunately, none are backed by science – drinking coffee to get sober is a myth, as is taking a cold shower, drinking a litre of water or eating fatty foods (this should be done before you drink). Once the alcohol is in your system your liver is going to need time to process it. Therefore restricting yourself to only one unit per hour will give your body the time it needs to stay sober in the eyes of the law. When alcohol enters your stomach, it’s quickly absorbed into your bloodstream through the stomach lining and small intestine. However, some alcoholic drinks are absorbed faster than others – a shot of the hard stuff will get you drunk faster than a beer. You may begin to feel the effects within 10 minutes of drinking and the effects will peak around 40 to 60 minutes later.

What happens if you are actually caught driving under the influence?

Perhaps you’ve been “lucky” up to now and you have not been caught drinking and driving. Maybe you believe that you are capable of driving drunk. There are most probably still those few who despite evidence to the contrary, insist that they are completely fine to get behind the wheel and drive themselves home. They have most likely even added that they “live 5 minutes down the road, what could go wrong”. Well, a lot actually.

If you’re found guilty of drunk driving in South Africa you could face up to 6 years in jail. You could also be liable for fines of up to R120 000 and your driver’s license may be suspended. You will have a criminal record which can have serious ramifications for the rest of your life. Of course, the worst case scenario is that you could kill someone else on the road, your loved ones, or yourself.

The term “drunken driving” refers to two different criminal charges, namely:

1. Driving while under the influence of an intoxicating liquor or drug having a narcotic effect; and
2. Driving while the concentration of alcohol in your blood or breath is over the specified limit.

Sometimes “reckless or negligent driving” and even “inconsiderate driving” may be included as charges. The charges relate to driving on a public road and cover both actual driving, and also being in a drunken condition while occupying the driver’s seat of a vehicle while the engine is running.

To “catch” drunk drivers, official roadblocks are conducted by the South African Police Service (SAPS), Metropolitan Police Departments and other law-enforcement agencies. These checkpoints are there to discourage people from driving while under the influence. When stopped at a roadblock, a law enforcement officer may choose to breathalyse you at their sole discretion. What may happen following the roadblock is as follows:

1. You will be arrested for being over the limit: if you are suspected of drinking and driving, you will be breathalysed. If the breathalyser tests positive (and you are found to be over the legal limit), the police official is entitled, under Section 40(1) of the Criminal Procedure Act 51 of 1977 (the “CPA”) to formally arrest and charge the accused with the offence of contravening section 65(5) of the NRA, which prohibits driving while under the influence of intoxicating liquor or drugs. Do not resist arrest or become violent under any circumstances as such behaviour may prejudice your chances of being released on bail. You must be treated with dignity, and be read your rights – including your right to remain silent and your right to phone one person to inform them of the situation (call your attorney, family or a friend). You must provide the officer with your full name.

2. You will be detained: once arrested, authorities are then allowed to detain you for further evaluation and according to Sec 50 of the CPA, you shall “as soon as possible”, be taken into custody at the closest police station and sent for further testing at an alcohol testing centre. However, despite the positive reading on the breathalyser, an accused person is still presumed to be innocent until proven guilty. Section 35 (3)(h) of the Constitution of the Republic of South Africa states that “Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings“. The State must therefore prove, by admissible and credible evidence that the accused was indeed over the legal limit during the act of driving or occupancy. This involves the taking of a blood sample as is set out in Section 65(9) of the NRA in order to prove their case.
3. Who can take blood for these purposes? According to Sec 65(9) a person arrested for one of the drink-and-drive offences is not entitled to refuse permission for a blood specimen to be taken. However, an arrested driver can request that his or her medical practitioner be present. In accordance with the rights of an arrested, accused or detained person under our Bill of Rights, the accused can demand to be shown that a sealed syringe and needle is used during the taking of the blood. According to Section 37(2)(a) of the CPA, the people that are authorised to take blood specimens are “medical officers of a prison, district surgeons or, if requested to do so by a police official, a registered medical practitioner or a registered nurse”. Once the authorised person takes your blood sample, it will be submitted to a state laboratory for scientific analysis. The analysis enables an expert to ascertain the estimated quantity of alcohol in the person’s blood at the time of the examination and must be done within two hours of the alleged act.
4. What then? A docket will then be opened and you will be allocated an investigating officer who will follow up on your blood test results. According to the SAPS website, you will then be held in custody until you are either released on bail or make your first appearance in court. According to Section 50(1)(d) of the CPA, you will have to appear within 48 hours of being arrested but this time period may be extended on weekends or public holidays as the courts are not open. This could mean spending 48 to 72 hours in a holding cell – Imagine being arrested on a Friday night and only appearing in court on Monday?!
5. Bail: a person who has been detained (as contemplated in Section 50(1)(a) of the CPA) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings. According to Section 58 of the CPA, an accused in custody can be released after the payment of, or the furnishing of a guarantee to pay, a sum of money determined for his bail.  The accused must thereafter appear at the place and on the date and time appointed for his or her trial. An accused can apply for bail at the police station before his/her first court appearance, and can be released by a police official of, or above, the rank of non-commissioned officer, (in consultation with the police official charged with the investigation), with regards to minor offences. For more serious offences, bail is granted by a prosecutor and in all other serious instances, may only be applied for in court. The Magistrate or Judge (depending on the seriousness of the offence), uses their own discretion, when considering the circumstances of every case and orders the amount of bail to be paid. The amount is dependent on numerous factors, including the nature of the crime, the interests of justice and other reasonable conditions, such as the existence of a previous charge, affordability and income.
6. Sentencing: once the above has all taken place, the accused must then be brought to Court where the State, through a prosecutor, must prove a case beyond a reasonable doubt during a trial. This will include the state proving that the analysis was made by an expert who had the necessary skill and that the specimen analysed was that of the accused. A long and lengthy process which involves leading evidence by both the State and the accused’s defence team ensues and could take many months to finalise. However, it is important to remember that any arrested, accused or detained person, under our Bill of Rights at Section 35, has the right amongst others, to legal representation, which if they cannot afford to pay for themselves must be provided by the State.
7. Consequences of a DUI: Depending on the circumstances, sentences can vary from imprisonment (up to 6 years), to a fine (minimum of R2000), to the suspension of your driver’s licence. The court can suspend these sentences on condition that you don’t break the law again. Besides for the proceedings being time consuming and potentially costly, there are numerous negative long term consequences which can follow you years into the future. Your health, vehicle, finances, job and studies can be affected severely. A criminal record for drunk driving can stay with you for up to 10 years and can seriously hinder your employability and your status in the eyes of employers.

The safest solutions

Give up drinking. While that does seem like the most appropriate advice, it is not the most realistic.

Give up driving? We have set out some advice below taken from an article entitled “A real friend does not let you drive drunk” published on the Woman on Wheels website which we think provides very do-able solutions:

 “Ways to get home without drunk driving:

1. Plan and clarify: before the first drink is ordered or poured, make sure your friend has made an alternative plan to get home. This also means that you can party your heart out without the worry of feeling responsible for your friend at the end of the night.
2. Uber: there are loads of taxi services available, but when it comes to convenience and affordability your best bet is Uber. If your friend doesn’t have Uber, you can still order one for him/her from your account and pat yourself on the back at the end of the night for being a great friend.
3. Designated driver: if both of you are drinking, phone a friend or family member to collect you and if you’re worried about leaving your car on the road overnight, ask your sober friend to bring another sober friend to drive the other car home. Make them breakfast in the morning and offer to return the favour one day.”

So forget the “one for the road” and remember that drunk driving is a crime. So think before you drink, remain responsible, and always Arrive Alive.

See also: The Cannabis judgment: Implications for society and the workplace

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)