What are the legal implications of drinking and driving?

South Africans have a culture of driving under the influence which has caused many people to sit behind bars and obtain criminal record. During the festive season, drinking and driving has become a norm in South Africa and members of the South African Police Service (“SAPS”) are more frequently conducting road blocks during this period.

Is drinking and driving a criminal offence in South Africa?

Yes it is. 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 of alcohol. It provides that no one shall drive or even occupy the driver’s seat of a motor vehicle on a public road if they are over the legal limit.

What is the legal limit?

In terms of the NRA, no person shall operate a motor vehicle whilst having more than 0.05 gram per 100ml in their blood. When being breathalysed not more than 0.24mg per 1,000ml, however the Parliament plans on changing the laws by this December to zero alcohol in a person’s blood.

What happens when you are caught drinking and driving?

A law enforcement official, which includes a member of SAPS or Metropolitan Police, has the discretion to choose whether they want to use a breathalyzer or not.

If you are breathalysed or it is clear that you are under the influence, and you are over the limit, you will be arrested. You must furnish your details to the law enforcer. Should you give false information, you will have further charges to your name.

Once you have been arrested, the officer will take you into custody. The are entitled to do further tests at an alcohol testing centre. In terms of Section 37, you cannot refuse permission for a blood test to be taken, however you are entitled to have your medical practitioner present and you can request to see the sealed needle and syringe when being tested.

What happens if I refuse to get tested for alcohol in my blood?

Should you refuse to have your blood taken, and the office needs to take measures, a police order, knows as a SAP308, will be handed down.  This form is to be completed by the officer and then handed to the medical practitioner present. This particular form instructs the medical practitioner to determine the alcohol levels. Should the medical practitioner disobey the order, they can be charged for obstructing the ends of justice.

If a medical practitioner did not receive this order prior to the examination, the touching of or introduction of a needle into the body this will constitute assault.

How will they decide to conduct tests to prove I am over the limit?

Before the medical practitioner conducts the blood testing, he or she will do an evaluation to ascertain whether there is sufficient evidence to proof intoxication.

The evaluation will deal with the accused clothing, whether it is neat or dirty, if they have an open fly or if there is vomit present, facial redness, smell of alcohol, general behavior for example, swearing, argumentative or impulsiveness and they will also jot down your speech. Your legal representative will have the opportunity to argue that you are not over the limit and your conduct is everyday normal behavior.

A docket will then be opened and the docket will go to the investigating officer who will later follow up on the results.

What happens after I get arrested for driving under the influence?

You will be detained in a holding cell until you have been granted bail or at the next court appearance, which needs to be done within 48hours. Weekends are not included in the 48 hours and if you are arrested over a weekend you can be detained for longer than 48hours. You could spend a maximum time of 72hours in the holding cells if you arrested on a weekend.

On the day of your court appearance, the Magistrate will grant bail should he find that it is in the interest of justice. Your bail can be extended or postponed for 7 working days should the magistrate find the need to postpone your bail.

What is the legal consequences of Drinking under the Influence? What is the punishment for drunk driving in South Africa?

You can face imprisonment of up to 6 years or a fine in the minimum amount of R2,000.00. You also face the risk of having your driver’s license suspended. The court has the discretion to hand down a suspend sentence on condition that you do not drink and drive again.

Will I have a criminal record if I am found guilty of drunk driving?

Yes, you will have a criminal record up to 10 years.

It is of vital importance to appoint a specialist drunk driving attorney to ensure that your matter gets argued in such a manner that it will not lead to imprisonment and/or a criminal record.