A charge of driving under the influence, brought under section 65 of the National Road Traffic Act 93 of 1996, is a criminal charge, and like any criminal charge it must be proven by the State beyond reasonable doubt. There is no single “best” defence, because the defence that matters is the one that fits the facts of your particular matter. What is decisive in one case may be irrelevant in the next.
The defences that succeed in South African courts tend to fall into a small number of categories: procedural irregularity in the arrest or the testing, defects in the scientific evidence, breaks in the chain of custody of a blood sample, non-compliance with the statutory warnings, and the simple absence of proof that the accused actually drove the vehicle. Each of these is examined below, together with an honest assessment of when it applies and when it does not.
This article explains, in plain terms, the defences that are realistically available on a section 65 charge. It is general information and not legal advice; for guidance on a specific matter, the Criminal Law team at Otrebski Attorneys is available to assist.
What the State must prove before a defence is even needed
Before considering any defence, it helps to understand what the State is required to prove. Section 65 of the National Road Traffic Act 93 of 1996 creates two related offences. The first is driving while under the influence of intoxicating liquor or a drug having a narcotic effect. The second is driving with a blood or breath alcohol concentration above the prescribed limit. The elements are settled in the case law and each must be proved beyond reasonable doubt.
- Driving. The accused must have driven or steered the vehicle on a public road. Being seated behind the wheel of a stationary vehicle is not, on its own, driving.
- A public road. The offence applies on a public road. Driving on private land does not engage section 65 in the same way.
- Impairment or an excess reading. The State must prove either that the accused was impaired, or that the blood or breath alcohol concentration exceeded the prescribed limit at the time of driving.
- A lawful and properly tested sample. Where the State relies on a reading, the testing procedure, the instrument, and the chain of custody must all comply with the Act and the regulations.
Because the burden rests on the State throughout, a defence does not have to prove the opposite. It is often enough to raise a reasonable doubt about one element. This is the foundation on which every defence below is built.
Procedural irregularity in the arrest and the stop
The Criminal Procedure Act 51 of 1977 governs how an arrest must be conducted, and the National Road Traffic Act and its regulations govern how a roadside stop and test must be carried out. Where the police depart from these requirements, the consequences can be serious for the State’s case. Evidence obtained through a procedurally flawed process may be excluded, and where the exclusion of that evidence leaves the State without proof of an element of the offence, the charge cannot stand.
- Unlawful stop. A traffic officer must have a basis in law for stopping a vehicle. Where a stop was not authorised, what flowed from it may be challenged.
- Unlawful arrest. An arrest without compliance with section 40 of the Criminal Procedure Act, or without the jurisdictional facts being present, can render the arrest unlawful.
- Failure to inform the accused of rights. An arrested person must be informed of the right to remain silent and the consequences of not remaining silent, and of the right to be assisted by a legal practitioner.
- Delay in bringing the accused before a court. An accused who is not brought before a court within the period allowed by the Criminal Procedure Act may have a standalone basis of complaint.
A procedural irregularity does not automatically defeat the charge. A court will weigh the nature of the irregularity and its effect on the fairness of the trial. Some irregularities lead to exclusion of evidence; others lead to a civil remedy but leave the criminal charge intact. Whether a particular irregularity assists a defence depends on the facts.
The statutory warnings and what was said after arrest
Section 35 of the Constitution of the Republic of South Africa, 1996, and the provisions of the Criminal Procedure Act, require that an arrested person be warned of the right to remain silent, that any statement may be used as evidence, and of the right to legal assistance. The Criminal Procedure Act 51 of 1977, together with the Judges’ Rules adopted in our courts, sets out how admissions and confessions must be taken if they are to be admissible.
- Warnings not given or not recorded. Where the arresting officer failed to warn the accused, or failed to record the warning, statements made afterwards may be challenged.
- Statements taken in circumstances of duress. A statement obtained under inducement, threat, or promise of advantage may be inadmissible.
- Confessions without a competent attesting officer. A confession must be reduced to writing and confirmed in the presence of a magistrate or justice of the peace, in the prescribed form, to be admissible against the accused.
Where admissions or a confession are excluded, the State is often left with only the observations of the arresting officer and the reading. Those may still be enough to convict, but in many matters the exclusion of what the accused is alleged to have said materially weakens the case.
Challenging the breath alcohol evidence
Where the State relies on a breath alcohol reading from an evidential breath testing instrument, the defence will scrutinise the instrument, the operator, and the procedure. The regulations to the Act prescribe how the instrument must be calibrated, maintained, and operated, and the case law requires that the State lay a proper foundation for the admission of the reading.
- Calibration certificates. The instrument must have been calibrated by an approved laboratory within the prescribed period, and the calibration certificate must be produced.
- Maintenance and servicing records. A breath instrument that is out of service interval, or that has a history of faults, may produce a result that cannot safely be relied on.
- Operator competence. The officer who administered the test must hold the prescribed operator’s appointment and must have followed the correct procedure, including the observation period before the test.
- Interfering substances and medical conditions. Certain substances, including some mouthwashes and medical conditions affecting the mouth or stomach, can affect a breath reading and may require expert evidence.
A breath reading that is not properly supported by calibration, operator, and procedural evidence may be excluded or given little weight. The defence does not have to prove that the instrument was wrong; it is enough to raise a reasonable doubt about whether the State has proved that the instrument was right.
Challenging the blood alcohol evidence
Blood alcohol evidence is generally regarded as more reliable than breath evidence, but it is also more vulnerable to challenges in the chain of custody and in the handling of the sample. A blood sample must be drawn by a registered nurse or a medical practitioner, sealed, labelled, stored, transported, and analysed in accordance with the regulations, and every link in that chain must be accounted for in evidence.
- Qualifications of the person who drew the blood. The sample must be drawn by a person authorised to do so. Where the qualifications are not proved, the result is open to challenge.
- Time of the draw relative to the time of driving. Alcohol levels rise and fall over time. A reading taken some time after driving must be related back, and the relationship between the reading and the time of driving can be a real issue, especially where there was delay.
- Breaks in the chain of custody. Every person who handled the sample, from the nurse who drew it to the analyst who tested it, must be identifiable. An unexplained gap can compromise the result.
- Storage and preservation. A sample that was not refrigerated, or that was stored in a way that allowed fermentation or contamination, may produce an artificially high reading.
- Forensic laboratory practice. The analyst’s qualifications, the laboratory’s internal controls, and the methodology used can all be tested in cross-examination.
These challenges often require expert evidence of the defence’s own, and whether to commission such evidence is a strategic decision that depends on the strength of the State’s chain of custody and the magnitude of the reading.
The “driving” element and the identity of the driver
It is surprisingly common for the State to have no direct evidence that the accused drove the vehicle. The police often arrive after the vehicle has stopped, sometimes after an accident, and the question of who was behind the wheel at the relevant time may not be as straightforward as the docket assumes. Where the State cannot prove driving beyond reasonable doubt, the charge must fail, regardless of the reading.
- No witness to driving. Where the only evidence of driving is an admission by the accused, and that admission is excluded, the State may have no case.
- Multiple occupants. Where several people were in the vehicle, the State must prove that the accused, specifically, was the driver.
- Stationary vehicle. Being seated in a stationary vehicle, even in the driver’s seat, is not the same as driving, although it may give rise to other considerations.
Reading at or below the prescribed limit
The prescribed limits are set out in the regulations to the Act. For an ordinary driver the limit is 0.05 grams of alcohol per 100 millilitres of blood, or 0.24 milligrams per 1 000 millilitres of breath. For a professional driver the limit is lower, at 0.02 grams per 100 millilitres of blood and 0.10 milligrams per 1 000 millilitres of breath. Where the analysis returns a reading at or below the prescribed limit, the State has no case on the “excessive alcohol” count, although it may still proceed on the alternative impairment count if the evidence supports it.
A reading close to the limit, coupled with the inherent margin of error in any analytical method, can give rise to a reasonable doubt even where the nominal figure is slightly above the threshold. This is a matter for careful analysis of the laboratory report and, where appropriate, expert evidence.
Honest limits of the defences
It is important to be honest about what a defence can and cannot achieve. A clear and properly documented reading, taken from a sample handled in accordance with the regulations, by an officer who followed every step of the procedure, is difficult to displace on technical grounds alone. In those circumstances, the realistic assessment may be that the prospects of an acquittal after trial are limited, and that the better course is to engage with the State in plea negotiations under section 112 of the Criminal Procedure Act, or on sentencing.
The defences described above work where there is a genuine defect in the State’s case. They do not create a defect where none exists. A frank assessment of the strengths and weaknesses of the State’s evidence is the most valuable thing a defence attorney brings to a DUI matter, because it allows the accused to make an informed decision between trial, plea, and sentence negotiation.
How the choice of defence is actually made
The defence that is run in any particular matter is the product of a disciplined sequence. Skipping a step, or running a defence before the State’s case has been properly examined, is how strong points are missed and weak points are pursued at cost.
- Obtain disclosure. The police docket, the analyst’s report, the calibration and operator certificates, and the chain of custody documentation are the starting point.
- Identify the issues. Each element of the offence is tested against the disclosed evidence. The issues that survive that test are the live issues for trial.
- Consider expert evidence. Where a technical challenge has merit, the question is whether it is worth the cost and delay of expert evidence, weighed against the magnitude of the reading and the strength of the State’s chain.
- Make a strategic call. The decision between trial, plea, and sentence negotiation is made on the strength of the issues, the accused’s instructions, and the likely sentence on conviction.
There is no universal answer to the question of which defence is best. The best defence is the one that fits the facts of the matter, identified through careful analysis of the docket and frank advice about the prospects.
Frequently Asked Questions
What is the best legal defence against a DUI charge in South Africa?
There is no single best defence. The defence that matters is the one that fits the facts of the matter. In South African courts the defences that succeed tend to target procedural irregularity in the arrest or testing, defects in the calibration or operation of the breath instrument, breaks in the chain of custody of a blood sample, non-compliance with the statutory warnings, or the absence of proof that the accused actually drove the vehicle on a public road.
Can a DUI charge be dismissed?
Yes. A DUI charge under section 65 of the National Road Traffic Act 93 of 1996 can be dismissed where the State cannot prove an element of the offence beyond reasonable doubt. This can occur where evidence is excluded because of a procedural irregularity, where the chain of custody of a blood sample is broken, or where the calibration or operator certificates for the breath instrument are not properly before the court.
Can a breathalyser reading be challenged in court?
Yes. An evidential breath testing instrument must be properly calibrated within the prescribed period, maintained and serviced according to the regulations, and operated by an officer who holds the required appointment and who followed the correct procedure, including the observation period. Where any of these foundations is missing, the reading may be challenged and may be excluded or given little weight.
What is the chain of custody in a blood alcohol case?
The chain of custody is the unbroken record of every person who handled the blood sample, from the nurse or medical practitioner who drew it, through the officers who sealed, stored, and transported it, to the forensic analyst who tested it. A break or an unexplained gap in that chain can compromise the reliability of the result and is a recognised ground of challenge.
Do I have to prove that I was not over the limit?
No. The burden of proof rests on the State throughout. The State must prove, beyond reasonable doubt, that the accused drove on a public road while impaired or with a blood or breath alcohol concentration above the prescribed limit. The defence does not have to prove the opposite; it is often enough to raise a reasonable doubt about a single element of the offence.
Is a procedural error by the police always a defence?
Not always. A procedural error is a defence only where it has consequences for the admissibility of evidence or for the fairness of the trial. Some irregularities lead to the exclusion of evidence and the collapse of the charge; others may give rise to a civil remedy without affecting the criminal case. Whether a particular irregularity assists depends on the facts.
Should I get an attorney for a DUI charge?
Yes. A DUI charge carries criminal penalties and a criminal record, and the defences available depend on close analysis of the docket, the analyst’s report, the calibration and operator certificates, and the chain of custody documentation. An attorney can identify the live issues in the matter, advise frankly on the prospects of an acquittal after trial, and on the alternatives of a plea or sentence negotiation under the Criminal Procedure Act 51 of 1977.
Get help with a criminal law matter. Otrebski Attorneys’ Criminal Law team in Sandton examines the docket, the testing procedure, and the evidence on section 65 charges, and advises frankly on the prospects of a defence, a plea, or a sentence negotiation. As a 100% women-led firm with a 5-star Google rating across 12 reviews, a Level 4 B-BBEE rating, and Director Nastasja Otrebski at the helm, we bring disciplined, evidence-based judgement to every matter.
Disclaimer. This article is general information about defences to a section 65 charge under the National Road Traffic Act 93 of 1996 and is not legal advice. The defences available in any particular matter depend on its facts, and the law and the prescribed limits may be amended. For guidance on a specific matter, confirm current requirements with the South African Police Service, the National Prosecuting Authority, the relevant magistrate’s court, or a qualified criminal law attorney.