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We all know that you should not drink and Drive.

Drunk driving plays a very important role in the high death rate that we have on our National Roads.


When one is stopped for drunk driving one is usually charged with:

  1. Drunk driving and in the alternative
  2. Driving or operating a motor vehicle; when one is over the legal over .05 grams/per millilitre of blood.

Let us have a look at these two separate but very often alternative charges.

To be convicted of drunk driving the court must be satisfied that you were, in fact, drunk when driving the vehicle. That means that the State must prove:

  1. That you drove the vehicle. This means that you were under the influence of alcohol OR under the influence of Drugs and
  2. That you were behind the wheel while the engine was running. So; if you are stationary at a robot; or passed out behind the wheel with the engine running; that is still drunk driving.
  3. The evidence before the court must convince the court beyond a reasonable doubt that you were under the influence. This can be led by evidence as to how you drove and what state you were in when stopped and even evidence by a witness that you slurred your speech; could not walk a straight line; smelt of alcohol are all evidence that could satisfy the court on this count.
  4. The State does not have to lead evidence of the blood alcohol level of the accused at the time of his arrest, but clearly, if the State has this evidence then that evidence will be in addition to the other evidence the State leads to convincing the court that you were drunk driving at the time.

To be convicted of driving a motor vehicle while under the influence of alcohol with an alcohol level in excess of .05 grams per 100 millilitres of blood: The State MUST lead expert evidence as to the Blood alcohol level of your blood as at a time that is not longer than 4 hours after you were arrested or stopped at the roadblock. If your blood is drawn after 4 hours the court will be advised by the defence of this fact and the accuracy/correctness of the test will be tested by the defence and at risk of being rejected as evidence by the court. The most accurate and acceptable method of testing the alcohol level of your blood is by drawing blood; and testing in a laboratory the number of grams of alcohol per 100 millilitres of blood.

In recent years the State has tried to use Drager machine results to prove to the court the alcohol content of the blood. A Drager machine is a handheld device and can be used on site by the Police of Traffic police where you are arrested. It measures the alcohol in a persons breathe and not your blood.

However in a Test case in the High Court in Cape Town in 2012 the court heard extensive evidence on its reliability and on the facts of that case rejected it as not sufficiently accurate as a large number of factors could make it inaccurate compared to a blood test. As a result the Drager was not used in the Western Cape to prove your blood alcohol level for some years; but is used in other parts of SA still and would still be part of the evidence that a court could take into account in convicting you of drunk driving if there is other evidence to the effect that you were drunk while driving.

More recently a more advanced and improved Drager machine is being used throughout the country now as a means of testing for alcohol levels and its accuracy still has to be tested in a court of law.

Please visit our website at for more information on our firm and other legal issues or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond within 48 hours.

Should you wish to comment on this or any other legal topic; please also send us an e-mail, and we will respond.

Thank you.

The Legal Advice Office Team.


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Legal Advice Office

South Africa

Kandelaar Street, Vermont, Hermanus
Phone: +27 (0) 82 093 2304