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How much you can drink and still drive without being arrested in South Africa

To be above the legal limit for driving in South Africa, your blood-alcohol content may not be over 0.05g of alcohol per 100ml of blood for a normal driver or 0.02g for a professional driver, and your breath-alcohol content may not surpass 0.24mg of alcohol per 1,000ml of breath as a normal driver or 0.10mg as a professional.

Naturally, blood and breath-alcohol content varies with the size and weight of a person, but according to the national police (SAPS), the majority of people will be over the limit if they consume more than:

  • 350ml of beer
  • A single tot of spirits such as brandy

“This means that even after what you may think is a ‘small drink’, you could be over the limit,” said the SAPS.

“Remember that these levels of alcohol will remain in your system for up to eight hours after consumption.”

While the new Administrative Adjudication of Road Traffic Offences (Aarto) Act has decriminalised most traffic infringements such as speeding, driving under the influence (DUI) of drugs or alcohol still remains a criminal offence and will therefore be handled in terms of the Criminal Procedure Act.

What happens when you’re pulled over and under the influence

If you are pulled over after having a drink or two, it’s important to know your rights and the correct procedures to follow to ensure you are arrested, charged, or detained fairly, and not made an example of.

When a SAPS or metro police officer suspects you had one too many, they will first ask to see your licence and if you had anything to drink.

It’s important to always tell the truth because you may be asked to take a breathalyzer test, which could exacerbate the outcome if the officer finds that you lied.

In this scenario, your rights according to Adendorff Attorneys (AA) are as follows:

  • You can ask the police officer to see the written authorisation for the roadblock. If asked, they must produce the permit immediately. Do not attempt to resolve the matter on the roadside if the officer cannot produce documentation. Instead, report the incident to the officer’s supervisor at the police station. You may then have the right to take civil action against the officer.
  • Filming events at a roadblock is legal, so if you feel that your rights are being violated, take out your phone and record the situation.

If you are asked to take a breathalyzer test, calmly and politely exit the vehicle and follow the traffic official to the testing station, but your passengers may remain seated.

“You may refuse a breathalyzer test, but then you will likely be asked to take a blood test, which you cannot refuse,” said AA.

If the breathalyzer determines that you are over the limit, you will be informed, arrested, and taken to a mobile blood testing unit or police station for a blood draw.

Before the arrest, the officer must read you your rights, including your right to remain silent and to call someone if you so choose, and they must do this in a language you understand.

“If you are arrested, do not resist arrest or become violent. Refrain from giving the police any information other than your full name,” said AA.

A breath-alcohol test alone is not enough to convict you, therefore, a blood test must confirm your breath-alcohol levels. This will likely be done at a police station, in which case a passenger is allowed to drive your car to the station, or you can leave it where it is and come back for it later.

During a blood test, your rights include:

  • You can request that your passengers drive you while being escorted by police.
  • You cannot refuse a blood draw unless the test is to be done by a non-qualified person. Only a medical doctor (district surgeon or prison medical officer) or a registered nurse is authorised to take blood samples, and you can ask to be shown that the needle and syringe used are new.
  • The law states that “the police may use any force necessary to draw the blood,” which means a police officer could restrain you if you are unruly and uncooperative.
  • The police must test your blood within two hours of being stopped. If your blood is tested after two hours, it will not be admissible in court and may not provide evidence for your case, which could result in your case being dismissed.

“If you want your doctor to be present, you can ask them to be phoned so they can be present during the blood draw. However, if this delays the blood draw for more than two hours, you risk being charged with obstruction of justice,” said AA.

If everything was done by the book and it is confirmed that you were, in fact, above the limit whilst driving, a case docket will be opened at the police station.

Here, your fingerprints will be taken and the officer may ask you additional questions about the events that led to your arrest.

During the opening of a docket, your rights include:

  • You have the right not to give any statement without your attorney being there. If you cannot afford legal assistance, you can ask for legal aid, which will be provided by the state.
  • You have the right to demand to be held in a clean cell. Food, bedding, and medical care are among the essentials you can expect during your detention.

Once the statements are made you will be given an opportunity to post bail, which is usually anywhere from R500 to R2,500, depending on the severity of the case.

If you post bail, you are free to go but will be given a warning statement indicating when and where you must appear in court. If you are not given a warning statement, the police will issue a summons on a future date and have it served upon you, which will contain the dates and details of when you are to appear.

If you can’t post bail, you will remain in custody until you appear in court. If the particular station you are at does not have holding cells, you will be transported to one with cells.

However, if at any point you feel that your rights are being violated, you can call your attorney and inform them of the situation.

“When your case goes to trial, this information is important to the case,” said AA.

“In all criminal cases, the police must take extensive notes so you can match your suspicions with the evidence noted in their books and charge sheets. All changes to charge sheets need to be signed by you and the officer.”

Following the arrest and subsequent detention, you must appear in court within 48 working hours, but if you are released on bail or are in pre-trial detention, you will be assigned a court date at a later time either through a warning statement or a summons.

Again, in court you will have the right to legal representation, which must be provided by the state if you can’t afford it.

“If you are found guilty of DUI in South Africa, your sentence can range from a few months of community service to a maximum of a six-year prison term,” said AA.

“There is also the possibility of a fine of at least R2,000 and the danger of having your driver’s licence suspended.”

In the worst-case scenario, you could also have a criminal record for up to 10 years.

“If a SAPS or Metro officer stops you, the most crucial advice is to remain calm and cooperative,” said AA.

“When you are intoxicated, it can be difficult to remember what you should do and your rights, but if you comply with police requests, you can help the process go more smoothly.”

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