DRINKING AND DRIVING: PLAYING RUSSIAN ROULETTE WITH LIVES AND THE LAW OVERVIEW

Whilst the majority of adults in South Africa have, at some point in their lives, been guilty of driving under the influence, unless one has been caught, it is unlikely that the intricacies and ramifications of this offence have truly been appreciated.

IS DRINKING AND DRIVING ILLEGAL?

Drinking and driving is indeed an offence – and not one that is always easy to get away with, or simply pay a fine to get out of. Section 65 of the National Road Traffic Act, Act 93 of 1996 ("NRTA"), states that driving under the influence of any alcohol or a drug having a narcotic effect, is a criminal offence and can result in severe legal ramifications – detailed hereunder.

HOW MUCH IS TOO MUCH?

Drinking and driving becomes a crime once you exceed the legal limit. According to the NRTA, a person cannot drive a vehicle when there is more than 0.05 grams of alcohol per 100 millilitres of their blood. This is the legal limit; there is no exception to this law. Any law enforcement officer of the South African Police Service or the Metropolitan Police can conduct a breathalyser test. If you have more than 0.24mg of alcohol per 1 litre of your blood, the breathalyser test will indicate that you are over the limit. All it takes is two beers or a double brandy and coke to put you over the legal limit.

HOW LONG IS ALCOHOL PRESENT IN YOUR SYSTEM?

It is a common misconception that waiting a few hours before driving will get rid of the alcohol in your system. These common misconceptions include, drinking a substantial amount of water before driving, drinking a cup of coffee, or having a cold shower will expel the alcohol from your body. These theories are incorrect – as a matter of fact, alcohol consumed will stay in your system for up to EIGHT HOURS after consumption.

THE ARREST

Many individuals may be unaware that in South Africa, if you are pulled over by a law enforcement officer and requested to undergo a breathalyser test, you have the option to decline. However, it's important to note that the officer has the authority to transport you to the nearest police station and request a blood test, which cannot be refused. The results of this blood test will conclusively determine whether you were intoxicated at the time of testing. It is worth noting that a blood sample must be taken within 2 hours of being pulled over by an officer. If the breathalyser comes back positive, the police officer is entitled, under section 40(1) of the Criminal Procedure Act 51 of 1977 (CPA), to formally arrest and charge the accused with the offence of contravening section 65(5) of the NRTA, which prohibits driving while under the influence of intoxicating liquor or drugs.

Following your arrest, you will be held in a holding cell until either bail is granted or you appear before a presiding officer in court.

Whilst in detention, you have the right to remain silent and the right to contact any one person (including an attorney) to inform them of your arrest. Your attorney can cover the bail expenses (if granted), securing your release from custody until the date of your court appearance.

THE COURT PROCESS

First appearance:

Within 48 hours (excluding weekends and public holidays) of your arrest, you will have your first appearance in a Magistrate’s Court. You will be informed of the charges against you and your rights. This includes the right to legal representation.

Plea bargain:

The prosecutor has the authority to offer you a plea bargain, which involves pleading guilty in exchange for a reduced sentence. You should consult your attorney before accepting a plea bargain.

Trial:

If you do not plead guilty to the charges, your case will proceed to trial. The state will present arguments aiming to convict you for driving under the influence and potentially other related offenses. The final outcome is contingent on the particulars of your case, any additional offenses committed, and various other factors.

PUNISHMENT

Acquittal:

If the court finds that you are not guilty of drinking and driving, you will be released without any penalties.

Conviction:

If you are convicted of drinking and driving, you may be liable to a fine of between R2 000.00 (minimum fine) and R120 000.00 (maximum fine) and you could face the maximum penalty of 6 years in prison. This punishment is specific only to the conviction of driving under the influence and there are various other factors that may increase ones punishment.

One of the most severe consequences of drinking and driving is the criminal record that accompanies the crime. You will have a criminal record for up to ten years – even if you are simply given a fine to pay. This can make obtaining a bank account, loans, a job, or tertiary education extremely difficult.

CONCLUSION

Drinking and driving is never a good idea. From receiving a fine to potentially injuring and killing people, there is no good outcome when you drink and drive.

Should you require legal representation, you should call your attorneys as soon as possible.

Written by: Garion Malherbe