By Johanise Fouche


It’s the festive season and we all want to let our hair down and spent time with family and friends. Spending time often also means the intake of alcohol. With driving under the influence being one of the major causes of death on South African roads it might be time to rethink our party habits.
The fact that should be burned into every motorist’s memory is the following:
The legal limit is a breath alcohol content of 0.24mg per 1,000ml, or a blood alcohol limit of 0.05g per 100ml. What does this mean to you, and what specifically constitutes being over the limit?
The rule of thumb is a maximum of one unit of alcohol per hour, which constitutes 10ml of pure alcohol, based on an adult weighing 68kg. Our bodies can process only one unit of alcohol each hour. However, it is important to be aware that if you weigh less than 68kg your body will need more time to process the same amount of alcohol.




There are no quick fix, once the alcohol is in your system your liver is going to need time to process it. Therefore restricting yourself to only one unit per hour will give your body the time it needs to stay sober in the eyes of the law. When alcohol enters your stomach, it’s quickly absorbed into your bloodstream through the stomach lining and small intestine. However, some alcoholic drinks are absorbed faster than others – a shot of the hard stuff will get you drunk faster than a beer. You may begin to feel the effects within 10 minutes of drinking and the effects will peak around 40 to 60 minutes later.


Alcohol significantly slows down your reaction time and distorts your vision. The effects of a heavy night of drinking could well affect your driving ability the next morning, and you may still be over the legal limit. After only one unit of alcohol, your chances of being in an accident are doubled, and when you are at the legal limit of 0.24mg, you are four times more likely to be in an accident. You need to ask yourself if it’s worth risking the consequences before you decide to drink and drive.


1. You will be arrested for being over the limit: if you are suspected of drinking and driving, you will be breathalysed. If the breathalyser tests positive (and you are found to be over the legal limit), the police official is entitled, under Section 40(1) of the Criminal Procedure Act 51 of 1977 (the “CPA”) to formally arrest and charge the accused with the offence of contravening section 65(5) of the NRA, which prohibits driving while under the influence of intoxicating liquor or drugs.

Do not resist arrest or become violent under any circumstances, as such behaviour may prejudice your chances of being released on bail. You must be treated with dignity, and be read your rights – including your right to remain silent and your right to phone one person to inform them of the situation (call your attorney, family or a friend). You must provide the officer with your full name.

2. You will be detained: once arrested, authorities are 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.

3. Who can take blood for these purposes? According to Sec 65(9) a person arrested for one of the drink-and-drive offences is not entitled to refuse permission for a blood specimen to be taken. However, an arrested driver can request that his or her own medical practitioner be present. In accordance with the rights of an arrested, accused or detained person under our Bill of Rights, the accused can demand to be shown that a sealed syringe and needle is used during the taking of the blood. According to Section 37(2)(a) of the CPA, the people that are authorised to take blood specimens are “medical officers of a prison, district surgeons or, if requested to do so by a police official, a registered medical practitioner or a registered nurse”. Once the authorised person takes your blood sample, it will be submitted to a state laboratory for scientific analysis. The analysis enables an expert to ascertain the estimated quantity of alcohol in the person’s blood at the time of the examination and must be done within two hours of the alleged act.

4. What happens next? A docket will be opened and you will be allocated an investigating officer who will follow up on your blood test results. According to the SAPS website, you will be held in custody until you are either released on bail or make your first appearance in court. According to Section 50(1)(d) of the CPA, you will have to appear within 48 hours of being arrested, but this time period may be extended on weekends or public holidays as the courts are not open. This could mean spending 48 to 72 hours in a holding cell.

5. Bail: a person who has been detained (as contemplated in Section 50(1)(a) of the CPA) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings. According to Section 58 of the CPA, an accused in custody can be released after the payment of, or the furnishing of a guarantee to pay, a sum of money determined for his bail. The accused must thereafter appear at the place and on the date and time appointed for his or her trial. An accused can apply for bail at the police station before his/her first court appearance, and can be released by a police official of, or above, the rank of non-commissioned officer, (in consultation with the police official charged with the investigation), with regards to minor offences. For more serious offences, bail is granted by a prosecutor and in all other serious instances, may only be applied for in court. The Magistrate or Judge (depending on the seriousness of the offence), uses their own discretion, when considering the circumstances of every case and orders the amount of bail to be paid. The amount is dependent on numerous factors, including the nature of the crime, the interests of justice and other reasonable conditions, such as the existence of a previous charge, affordability and income.

6. Sentencing: once the above has all taken place, 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.

7. Consequences of a DUI: Depending on the circumstances, sentences can vary from imprisonment (up to 6 years), to a fine (minimum of R2000), to the suspension of your driver’s licence. The court can suspend these sentences on condition that you don’t break the law again. Besides for the proceedings being time consuming and potentially costly, there are numerous negative long term consequences which can follow you years into the future. Your health, vehicle, finances, job and studies can be affected severely. A criminal record for drunk driving can stay with you for up to 10 years and can seriously hinder your employability and your status in the eyes of employers.

“Reckless or negligent driving” and even “inconsiderate driving” may be included as charges. The charges relate to driving on a public road and cover both actual driving, and also being in a drunken condition while occupying the driver’s seat of a vehicle while the engine is running.

With services like Uber, Taxify, Driver Alert and Sober Chauffer, to name but a few, there is no excuse anymore for driving under the influence.


Go Legal

Our Friends at Law Enforcement and SAPS for always being so willing to verify information

Leave a Reply

Your email address will not be published. Required fields are marked *