Arrested for Drinking & Driving
ARRESTED FOR DRUNK DRIVING, WHAT NOW?
Driving under the influence of alcohol is a crime and having a criminal record can have serious ramifications for the rest of your life.
When you are arrested, it is extremely important to remember:
- You must provide your full cooperation and answer all questions honestly and respectfully.
- You have the right to phone one person– we highly advise that you phone our 24/7 number.
- Make a mental note of the time, as soon as you are asked to pull over.
- Take note that there are many procedures that law enforcement officials must adhere to when arresting and testing individuals who are suspected of drunk driving. For this reason, you need to know your rights as well as the prescribed procedure.
THE LEGAL LIMIT
Section 65 of the National Road Traffic Act 93 of 1996 sets out the prohibitions for driving under the influence of intoxicating liquor. The legal limits are as follows:
Blood: The concentration of alcohol in any blood specimen must be less than 0,05 gram per 100 millilitres.
Breathalyzer: The concentration of alcohol in any specimen of breath exhaled must be less than 0,24 milligrams per 1 000 millilitres.
The average human body can break down one unit of alcohol per hour. For this reason, an adult weighing 68 kg, may only drink one unit of alcohol per hour.
The following is a general guideline of units per drink:
- 1 x 75 ml glass of wine = 1 unit
- 1 x 250 ml glass of wine = 3.3 units
- 1 x shot/shooter = ½ unit (in most instances)
- 1 x spirit cooler = about 1.25 units
- 1 x beer = 1.5 units or possibly more
- 1 x cider = 2 units
- 1 x 25 ml tot of spirits = 1 unit
- 1 x cocktail = Between 2 and 4 units
Although the above list can be used as a helpful guideline, it is tremendously important to remember that there are several factors to take into consideration, such as weight, gender, age, health, fitness etc.
THE PROCESS
When pulled over at a roadblock, a South African Police Service (SAPS) or Metropolitan Police officer will ask the driver if he/she has been drinking. If the officer suspects that the driver is under the influence of alcohol, a breathalyzer test will be done.
If the results of the breathalyzer test is above the legal limit, the driver will be arrested on suspicion of drunk driving and then informed of his/her rights. The driver will then be taken for blood tests at the nearest hospital, clinic or blood drawing unit. The driver’s vehicle will be driven to the relevant police station by a police officer or by one of the other passengers, if they are found to be sober.
The blood of the arrested driver must be drawn within 2 hours of being pulled over. Section 65(9) of the National Road Traffic Act states that the arrested person may not refuse permission for a blood specimen to be taken. If the blood is tested after the two-hour time limit, the results will not be admissible in court and won’t amount to evidence. Unless there are other evidence to the contrary, this could result in your matter being dismissed.
Only a medical officer of any prison, a district surgeon, a registered medical practitioner or a registered nurse is authorized to take blood specimens. A sealed blood testing kit must be used and opened in front of the accused. The police officer must be present when the medical practitioner performs the blood testing. The accused must demand to be shown that a sealed syringe and needle is used during the procedure.
An arrested person is entitled to request that his/her own medical practitioner be present when the blood is being taken. Should this cause the examination to be delayed beyond the two-hour time limit, the accused will be charged for obstruction of justice.
At the police station, a docket will be opened, and the accused will be allocated an investigating officer. The accused will remain in custody until his/her appearance in court, or until police bail has been paid. If police bail is granted – the arrested person will only be released after a period of 8 hours in order for him/her to “sober up”.
Section 50(1)(d) of the Criminal Procedure Act states that an accused must appear before a court within 48 hours of being arrested. The accused will appear in a Magistrates’ Court on a date and time allocated to him/her after release on bail or while in custody. In court, the state must prove their case beyond reasonable doubt. The accused has the right to legal representation, the right attorney could mean the difference between having a criminal record and having a clean record.
If the accused is found guilty, sentencing can range from- imprisonment for up to 6 years, a fine of a minimum of R2 000.00, or the suspension of their driver’s license.
South Africa’s drunk driving laws are currently being reviewed by the Department of Transport and the Road Traffic Management Corporation. “They aim to drop the legal blood-alcohol level to 0%, meaning that drivers will not be allowed to drink alcohol and drive at all.”
CONCLUSION
A criminal record for drunk driving can stay with you for up to 10 years. This will seriously hinder your employability and it can affect one’s personal life, health, finances and even self-confidence.
Be responsible, order an UBER, choose a designated driver or phone a sober friend. As proud South Africans, we should all strive to be a good example for the younger generation by being law abiding citizens.
If you are pulled over, phone our 24/7 number on 084 662 3341.
# Print this document and keep it in you car!
Toets
Can you be taken to the police holding cell for drunk driving without being breathlyzed first?
no
Abe,
The article above talks about being taken to the Hospital or Clinic or “Blood drawing Unit” for blood sample to be taken for Blood Alcohol Concentration… I’m interested what does the Law refers to as “Blood Drawing Unit”…, Blood taken at the police station, is it admissible as evidence in the Court of Law? Which Section of the RTA gives a clear definition of “Blood Drawing Unit”..?
Good day,
The “place” at which the blood specimen is taken, it not so much relevant as “who” takes the blood specimen. It must be shown that the person taking the sample, and attending to the analysis, was an expert who had the necessary skill to do so.
Such a person could be a medical officer of a prison, or a doctor or nurse.
Regards,
PS. A blood drawing unit, is commonly known in South Africa as a Pathology Laboratory (Diagnostic Laboratories) such as Lancet Laboratories, Ampath Laboratories, Vermaak & Partners Laboratories etc. A Phlebotomists is a person, who typically works in hospitals, clinics, outpatient care facilities, diagnostic laboratories, and blood donation centres, who draws and prepares blood for medical testing, transfusions or donation and are trained to collect blood.
Hi
If a person’s breathalyzer test done at a roadblock read 0.25 and no other supporting evidence that he was under influence,was kept in custody overnight and paid a fine set out at the police station the following day, what should he expect on the day of appearing at court?can he be sentenced? NB no blood sample was drawn during this time
Good afternoon
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.
On the court day: 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.
So you can be sentenced for up to 6 years, but the state need to proof that you were over the limit, which would be very difficult without blood tests.
Regards,
And I’m busy buying a house will the bank decline my application because of the “criminal record if guilty
Good day
Not all lenders run a background check, but they can deny you for having a criminal record if they find it.