Legal News: Drinking and driving this festive season

Friday, 30 October, 2020
Simon Dippenaar
The festive season is around the corner. 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, and an associated increase in police roadblocks, in an attempt to crack down on this national crisis.

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. Even tamari (a type of soy sauce) has a tiny percentage of alcohol in it because of the fermentation process used in its production. So it is possible that the courts will 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.

However, we are lawyers, not legislators. It is not our job to make the laws, but to help our clients adhere to them. Although this law has not yet been enacted, confusion abounds. It’s safe to assume that 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. This market has exploded in the past 10 years, as we have become more responsible in our attitude to drinking and driving. 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, which brings us on to…


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, if you’re over the limit you will be taken into custody and sent for a blood alcohol test.
  • If you are stopped at a mobile alcohol evidentiary unit, your blood will be tested immediately. This means if you are innocent you will be released without the need for 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, which may result in a lowering of the blood alcohol level over the time elapsed. If you are over the limit you will be charged with DUI.
  • You will be taken to a police station, where you will be detained in the holding cells for at least four hours to sober up.
  • In the meantime, your car will be taken to the police station. It will be returned once you have posted bail. Your vehicle 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 to phone your family or a lawyer at this stage, if you haven’t already. If you’re detained, you have the right to consult your lawyer or, if you cannot afford a lawyer, you can apply for legal aid. 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.

There have been cases where individuals caught driving well over the legal limit have been released due to poor handling of evidence by the police. But it’s not worth hoping for a technicality. 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.