The current blood alcohol limit is an alcohol content in the blood not exceeding 0,05 g per 100 ml and the current breath alcohol limit is an alcohol content in the breath not exceeding 0,24 mg per 1000 ml.
However, there is a new bill1 in South Africa - the National Traffic Road Amendment Bill - that adopts a zero tolerance approach to driving under the influence. This will mean that you must score 0% for either of the previously mentioned tests to legally pass. The bill is expected to take effect later in this year.
If a person is stopped at a road block to be tested by a breathalyser or blood test for alcohol and such a person exceeds the legal limit, the person can be arrested on a charge of driving under the influence.
You may only be arrested in terms of section 40(1) of the Criminal Procedure Act 51 of 1977 after your breathalyser test or blood test result shows that you are over the legal limit. You cannot be arrested if the police officer’s suspicion is based only on the fact that you smell of alcohol.
Your rights when being arrested:
You have to be informed by the police officer of your right to remain silent2 and your right to legal representation, as enshrined in section 35 of the Constitution of the Republic of South Africa, 1996.
You have the right to be examined by a doctor, wear your own clothes and receive the prescribed ration of food. Your friends or family may bring you clothes and come and visit you. The police officer must allow you to make a telephone call. Whilst being detained, you always have the right to be treated with respect and dignity.
Admission of guilt fine:
Whilst in detention, you may be required to make two types of payments: admission of guilt fine or money to be released on bail. It is extremely important not to confuse the two.
An admission of guilt fine has the same effect as a guilty plea to the offense of driving under the influence.3 This will mean that you plead guilty without any legal advice or a trial.
Once you pay an admission of guilt fine, you will obtain a criminal record if your fingerprints have been taken and a formal dossier has been opened. A criminal record, can only under certain circumstances, be removed after a period of 10 years.
Bail:
Bail, on the other hand, is an amount determined by the police officer, the prosecutor or the court, to be paid in cash at the court or police station, for the release of a detained person.
This amount will depend on various circumstances such as the nature of the crime, whether a person has committed previous crimes and if a person is released on bail for another crime whilst being arrested for the current offence.
If the police officer refuses to grant bail, you must appear in court within 48 hours of being arrested. Weekends and public holidays are excluded from the calculation. This is also subject to the court’s operating times, which might differ from jurisdiction to jurisdiction, but court usually closes at 16:00.
This means, that if you are arrested on a Wednesday afternoon after 16:00, your 48 hours runs out on Friday after 16:00 which means that if you are unable to be brought before court, for whatever reason, it is legally permittable that you are only be brought before court on Monday morning.
Article by Mieke Relihan (LLB), Candidate Attorney at Malan Lourens Viljoen Inc.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.
1A law that is not yet promulgated or in action
2Your right to remain silent is not absolute as you are obliged to provide the police officer with your name and address.
3You will however not get a criminal record if you pay an ordinary speeding fine.