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What defines Drunk and Driving? Section 65 of the National Road Traffic Act 93 of 1996 (hereinafter referred to as “The Act”) defines driving under the influence under two scenarios:

  1. Driving while under the influence of intoxicating liquor or a drug having a narcotic effect, or with an excessive amount of alcohol in blood or breath.
  2. No person shall on a public road – a. drive a vehicle; or b. occupy the driver’s seat of a motor vehicle the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.
  3. No person shall on a public road – a. drive a vehicle; or b. occupy the driver’s seat of a motor vehicle the engine of which is running, while the concentration of alcohol in any specimen of blood taken from any part of his or her body is 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.
drunk and driving cavanagh & Richards attorneys
Don't get caught drinking and driving this festive season

It, therefore, provides that no one shall drive or even occupy the driver’s seat of a motor vehicle (whilst the engine is running) on a public road if their blood alcohol content is over the legal limit or if they are under the influence of an intoxicating drug.


The Act makes a clear distinction between professional drivers and normal driver by stating that professional drivers have a higher test to pass by limiting their alcohol usage as follows – “the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,02 gram per 100 millilitres”.

For normal day to day drivers who do not earn a living by driving a motor vehicle is currently measured as “the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 gram per 100 millilitres”.


  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 officer is entitled, under Section 40(1) of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as the “CPA”) to formally arrest and charge the accused with the offence of contravening section 65(5) of the Act, 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 your rights must be read to you – 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 and address. The address being the most important information because you can only be granted bail if your address is confirmed by the Police.

  • You will be detained in a holding cell:

Once arrested, authorities are then allowed to detain you for further evaluation and according to Section 50 of the CPAyou 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 Act to prove their case.

  • Who can take blood for these purposes?

In terms of Section 65(9) of the Act states that 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 medical practitioner be present. Under 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.

The blood sample must be taken within 2 hours of the arrest. If the arresting officers are of the South Africa Police Service or Metro Police, they must ensure that the blood sample must be taken within 2 hours or the Nation Prosecuting Authority may proceed to not press charges against the person who drove under the influence depending on the circumstances. “This is not always a get out of jail free card”.

A docket will then be opened and according to the SAPS website, you will then be held in custody until you are either released on bail or make your first appearance in court.

In terms of Section 50(1)(d) of the CPA, you will have to appear within 48 hours of being arrested but this 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 if Police.

  • Bail:

When a person is detained (as contemplated in Section 50(1)(a) of the CPA) a person shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.

In terms of Section 58 of the CPA, an accused in custody may be released after the payment of, or the furnishing of a guarantee to pay, a sum of money determined for his bail.

Depending on if he/she is a first-time offender or a repeat offender the Police may consider granting bail. In the case where a person is a repeat offender, a standby Prosecutor may grant bail giving due consideration to the circumstances.

Moreover, if a person resists arrest or causes an accident whilst driving under the influence, this person may be charged with reckless and negligent driving which will be aggravating circumstances where a standby prosecutor may refuse to grant Prosecutor Bail and the person will have to stay in custody until he can appear in court for a formal bail application alternatively a bail application where only a Magistrate or Judge may grant the bail to the accused.

  • Court:

The accused must thereafter appear at the place and on the date and time appointed for his/her trial. The Magistrate or Judge (depending on the seriousness of the offence) uses their discretion when considering the circumstances of every case and orders the amount of bail to be paid. The amount is dependent on the seriousness of the offence or circumstances of the offence, 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.

  • Chain of Evidence:

In short, the chain of evidence must be a complete circle, every person handling the blood sample must under auth state to whom they gave the blood sample and when. The Person testing the blood sample must then make an affidavit where they state what they did to the blood sample and how they calibrated and tested the blood sample. Ask your Attorney for more information regarding the chain of evidence.

  • Sentencing or Diversion:

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.

Under diversion, it is understood that it is an indirect guilty admission without getting a criminal record where the person must attend programs or community service for a period and return to the court with a positive attendance or report of completion, if a social worker finds you fit and proper to attend a diversion program or community service. There are various factors taken into account when diversion is considered, your age, if you are a first-time offender and other factors.


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 do not break the law again.

Besides the proceedings being time-consuming and potentially costly, there are numerous negative long-term consequences which can follow you years into the future.

One can only apply for an expungement of your record after 10 years. It is not a right to have your record expunged after 10 years nor is it an automatic process. Ask an attorney for more information.


In conclusion, to drink and drive is not advised, it will be an expensive and tedious experience where you might spend some time in the cells over the festive season. Despite spending time in the cells, your actions may have dire consequences if you cause an accident and somebody gets hurt or is fatally wounded. You will have to obtain a decent criminal law attorney who will be able to serve your interest to the best of their abilities.

Rather choose an Uber or a dedicated person who will drive whilst you have a night out on the town.

At Cavanagh and Richards Attorneys, we serve your interest with specialised attorneys offering a wide range of services to protect you when you need it. Always have your attorneys’ number available when you need it.

Written by

Tobie Schmahl

9 December 2020

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 any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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