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Scorpion Legal Protection looks at what happens if you are stopped on suspicion of drunk driving. What are your rights? What are the police legally allowed to do?
No. According to the Section 65(9) of the National Road Traffic Act: “No person shall refuse that a specimen of blood, or a specimen of breath, be taken of him or her.” If you are stopped at a roadblock or the police or metro police pull you over because they suspect you may be driving under the influence, they will ask you to perform a breathalyser test. You cannot refuse to perform the breathalyser test. If you are over the legal blood or breath alcohol limit, you will be arrested and charged with contravening section 65(5) of the NRA.
The legal blood alcohol limit for driving is less than 0.05g per 100ml of blood.
The legal breath alcohol limit is less than 0.24mg in 1 000 ml of breath.
The police may then request a blood alcohol test. You also cannot refuse the blood test. However, only a prison medical officer, a district surgeon, a registered medical practitioner or registered nurse is authorised to take blood. The blood must be taken at a place designed and equipped for this, so it cannot be taken, for example, in a police cell, a charge office or any other poorly equipped area. The police officers are not allowed to take the blood themselves. You have the right to demand that your own medical practitioner or doctor be present when the blood is taken.
Whether or not you are guilty of drunk driving, you still have the right to be treated with respect, and the right to know who the medical practitioner taking your blood is. The process of what will happen during the examination must be discussed with you. In accordance with the Bill of Rights, you can also demand to be shown that a sealed syringe and needle is used to take blood.
If the breathalyser and/or blood tests show that your breath or blood alcohol level is over the legal limit, you will be arrested and charged with Driving Under the Influence of Liquor.
You will be taken to the nearest police station and held in custody. You have the right to be treated with dignity, the right to remain silent and the right to phone one person – a lawyer, a family member or friend – to inform them of the situation. The police may search you, but only with your consent (they cannot search you if you refuse) and the search must be carried out by a person of the same sex – male officers are not allowed to search women and female officers are not allowed to search men.
A docket will be opened and an officer will be assigned to your case. You will be held in custody until you are either released on bail or appear in court. You are not guaranteed bail. According to Section 50(1)(d) of the Criminal Procedure Act, you have to appear in court within 48 hours of being arrested. However, this time period may be extended on weekends or public holidays because the courts are not open. This could mean spending 48 to 72 hours in a holding cell, especially if you’re arrested on a Friday night – you will only appear in court the following week.
Depending on whether or not you have prior convictions against you, as well as the circumstances surrounding your arrest, you face a minimum fine of R2 000 or a two-year prison sentence, or both. You may also lose your driver's licence, or have it suspended. If you are found guilty, you will have a criminal record, which can affect your ability to get a job, get a visa and travel outside the country.
You may also be interested in:
Unlawful arrests: what you need to know
Assaulted by police?
Can you use lethal force to protect your property?
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* This is only basic advice and cannot be relied on solely. This is not financial advice. The information is correct at the time of being sent to publishing.
Date added: 17 November 2020
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