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What Must I Do When Stopped For Drunk Driving Or Driving Under The Influence

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What Must I Do When Stopped For Drunk Driving Or Driving Under The Influence

Drunk Driving Lawyers Sandton | Martin Vermaak Attorney

The South African Police Service (SAPS), Metropolitan Police Departments and other Law Enforcements Agencies often have regular roadblocks to ensure compliance with the National Road Traffic Act (No. 93 of 1996) and other laws of the land.

Drunk Driving Lawyers Sandton | Martin Vermaak Attorney

As part of their functions, they look for and arrest people that they believe are driving drunk.

When the Johannesburg Metro Police Department (JMPD) released its crime statistics for the period January to August 2018 it showed that drunk driving is the single biggest violation taking place in Johannesburg.

According to the stats, 7,280 people were arrested on Joburg streets for driving under the influence of alcohol in 2018 – an average of 30 people arrested every day. More than 800 people were arrested for driving under the influence of alcohol in Johannesburg in November.

Some people think that they are not impaired after a few drinks and that they ‘can handle’ their alcohol, or some people think that because they got away with it for a long time that they will never get arrested.

If you are driving drunk there is a real chance that you will be arrested rather sooner than later.

Types of Roadblocks:

Informal roadblocks – you see these all the time, normally at on and off ramps. The purpose of these roadblocks is normally to see if vehicles are roadworthy, if your vehicle is licenced and they typically also look to arrest people that are intoxicated / driving drunk. Your vehicle cannot be searched without your consent or without a warrant except where the Officers can prove extraordinary circumstances.

Formal Roadblocks – the second type of roadblocks are roadblocks that are approved by the National Police Commissioner. Police officers can conduct searches of your vehicle and your person without a warrant. These roadblocks are normally where they are trying to find some-one specific. (Check the date, duration and purpose of the roadblock).

Roadblocks and Drunk Driving – when you get to a roadblock you must: –

  • Follow the instructions of the Officers;
  • You are entitled to ask to see their appointment certificates;
  • Collect evidence; check what time you are stopped, get details of police vehicles on the scene etcetera.
  • You are allowed to film Police Officers at a roadblock.

If you are arrested for “drunken driving” it refers to 2 different criminal charges, namely driving: –

  • while under the influence of intoxicating liquor or a drug having a narcotic effect and
  • while the concentration of alcohol in any specimen of blood taken from any part of his or her body is over a specific limit (not less than 0,05 gram per 100 millilitres, or in the case of a professional driver referred to in section 32, not less than 0,02 gram per 100 millilitres).

What are your rights upon arrest?

After your arrest, you will be taken to the Police Station to be ‘processed’. The Police may search you, however, a member of the opposite sex is not allowed to search you. The police have the right to take your fingerprints and take photographs of you and they have the right to obtain a blood sample from you if they think that you drove whilst intoxicated.

The Police must promptly inform you for the reason of your arrest and they must explain your rights to you in a language that you can understand.

Do not make any statements to the Police explaining yourself – first obtain the assistance of a DUI Attorney.

You are not required to answer police questions and in general a Court may not use your silence against you when you are tried.

Remember – you are presumed innocent until proven guilty.

What happens after the arrest for drunken driving?

The Law Enforcement Officer will get a registered medical professional like a medical Doctor or Nurse to take your blood sample. This is not unconstitutional and accordingly, an accused may not refuse that blood be drawn – on the contrary, the Police may use the necessary force to obtain the blood sample.

As a rule, the Officer will not be present when the blood sample is taken, except if they need to restraint you to get the blood sample taken.

The arrested person may ask to have his own Doctor present when the blood sample is taken, but the examination will not be delayed to exceed the two hour window while waiting for the Doctor to arrive.

If the blood is taken after the two-hour limit, the person arrested may still be convicted on a charge of driving under the influence based on other evidence.

The State must prove, beyond a reasonable doubt, that you are guilty of the charges – which is not always easy for the State to do as they must comply with a myriad of regulations and requirements.


Martin Vermaak

Practising Attorney

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