We don’t encourage drinking and driving, but know what to do if you are stopped in a roadblock

It will be December in a few days. The festive season is upon us. Despite COVID-19, there are likely to be seasonal celebrations, and inevitably consumption of alcohol. Every year there is a spike in road traffic accidents caused by drunk driving in December. In an effort to crack down on our national disgrace, the police become hyper-vigilant and set up an increased number of roadblocks. What should you do if stopped in a roadblock? And what is the current law on drinking and driving?

The National Road Traffic Amendment Bill

This Bill is an attempt to reduce the number of accidents and deaths on our national roads. It was approved by Cabinet in March this year, but has not yet been enacted. When it comes into force, the permissible blood alcohol level for driving will be 0%. Currently, the blood alcohol limit is 0.05 grams of alcohol per 100 millilitres of blood, and 0.24 milligrams of alcohol per 1000 millilitres of breath (lower for professional drivers). 

There are some concerns about a zero limit. For example, some medications contain traces of alcohol. The courts may be inundated with DUI cases where the defendant has never touched a drop of liquor. It is also likely that a driver could be over the limit the morning after a night out, whereas under current legislation they would be legally safe to drive.

It is not our job as lawyers to make the laws, but to help our clients adhere to them. Although this law has not yet been enacted, there is a lot of confusion, and it’s safe to assume this confusion will extend to the police. Our advice is to play it safe: don’t drink and drive. This will be the official guidance soon enough so it makes sense to get used to it. There are many ride-hailing and drive-you-home services available. It’s not worth risking “just one drink”, especially as it’s hard to know accurately how much alcohol you have consumed. And the likelihood of being breathalysed is much greater this time of year.

Roadblock

If you are stopped at a roadblock under suspicion of driving under the influence, you will be breathalysed. What happens next depends on the type of roadside unit.

• In a conventional roadblock, you will be taken into custody if you are over the limit and sent for a blood alcohol test.
• If the roadblock is a mobile alcohol evidentiary unit, your blood will be tested immediately. If you are innocent you will be released without further testing. However, if you are over the limit, you are far more likely to be charged, as there will be no delay in transferring to a testing centre, potentially resulting in a lower blood alcohol level because of the time elapsed. If you are over the limit you will be charged with Driving Under the Influence of Alcohol – or DUI.
• You will be taken to a police station and detained in the holding cells for at least four hours to sober up.
• Your car will be taken to the police station. It will be returned once you have posted bail. It will only be impounded if you’ve been in an accident. In this case you would have to go to the relevant traffic department and pay the impound fees to get it back.
• You will be allowed a phone call – to your family or a lawyer. If you are detained, you have the right to consult your lawyer or apply for legal aid if you can’t afford a lawyer. The police must inform you of this right.
• You may be released on bail (about R500) or you may be detained until your court appearance. At this stage it is hard to predict how each individual case will be dealt with in light of the tightening of the law.

Individuals caught driving well over the legal limit have occasionally been released due to poor handling of evidence by the police. SD Law will defend you if you are charged with DUI. But we’d rather our services were not needed. Leave the car at home if you’re going to be drinking.

Save our number just in case

Cape Town law firm SD Law is an expert in criminal law, including DUI and possession of drugs. We are available 24/7 to help. Save our number in your phone under “bail lawyer” 076 116 0623. But try not to need it!