South Africans use the phrases “drink driving” and “drunk driving” every day, and they are often assumed to describe two different offences. Drivers ask whether a “drink driving” charge is somehow lighter than a “drunk driving” charge, or whether one turns on a breath reading while the other turns on how the driver looked on the night. The distinction is a familiar one in everyday conversation, but it is not a distinction that exists in South African law.
In South African law, there is a single criminal offence of driving under the influence, and both everyday labels attach to it. The statutory home of the offence is section 65 of the National Road Traffic Act 93 of 1996, which prohibits driving while the concentration of alcohol in the blood or breath exceeds the prescribed limit, and also prohibits driving while the ability to do so is impaired. The courts, the Road Traffic Management Corporation, and the South African Police Service all enforce that single offence, regardless of which phrase the public uses to describe it.
Clarifying the terminology matters because the belief that there are two separate offences leads drivers to underestimate the seriousness of a charge. This page sets out what the law actually says, the legal limits that apply in South Africa, how the offence is proved in court, and the penalties a conviction carries.
The legal term: section 65 of the National Road Traffic Act
The offence most people call “drink driving” or “drunk driving” lives in section 65 of the National Road Traffic Act 93 of 1996. The section is titled “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”. That single heading captures two ways in which the State can prove the offence, and both fall within the same charge.
The first limb prohibits driving while the concentration of alcohol in the blood or breath exceeds the prescribed legal limit. This is the so-called “per se” or over-the-limit limb, and it is proved by a breath or blood reading. The second limb prohibits driving, or even occupying the driver’s seat of a vehicle, while the ability to drive is impaired by alcohol (or a drug having a narcotic effect). This impairment limb does not depend on a particular reading; it turns on the observable effect of the alcohol on the driver. Both limbs are charged under the same section, prosecuted through the same criminal courts, and produce the same criminal record on conviction.
There are therefore no separate, lesser drink offenses that sit below a more serious offence of “drunk driving. The phrases are everyday labels for the same statutory offence, and the difference between them is conversational rather than legal.
The prescribed legal limits in South Africa
The prescribed blood and breath alcohol limits are set out in the regulations to the National Road Traffic Act. They differ by category of driver, and they are the limits a court will measure any reading against on a section 65 charge.
- Ordinary drivers. A blood alcohol concentration not exceeding 0,05 grams per 100 millilitres of blood, or 0,24 milligrams of alcohol per 1 000 millilitres of breath.
- Professional drivers. A near-zero limit of 0,02 grams per 100 millilitres of blood, or 0,10 milligrams per 1 000 millilitres of breath, applies to drivers of public transport, goods vehicles over the prescribed mass, and other prescribed categories.
- Learner and novice drivers. The same lower 0,02 gram limit applies to holders of learner’s permits and new licence holders, reflecting the near-zero rule for less experienced drivers.
These limits are the threshold for the over-the-limit limb of section 65. Exceeding the limit is an offence in itself, regardless of whether the driver appears affected. Equally, a driver whose reading falls below the limit can still be charged and convicted on the impairment limb if the State proves that the ability to drive was materially impaired. This is why “I was under the limit” is not, on its own, a complete answer to a section 65 charge.
Why the two phrases cause confusion
The confusion between “drink driving” and “drunk driving” is understandable. In ordinary speech the words carry different shades of meaning. “Drink driving” tends to suggest driving after consuming some alcohol, while “drunk driving” tends to suggest driving at a level of visible intoxication. The danger is in treating those shades of meaning as if they describe separate statutory offences with different consequences.
Some drivers assume that a “drink driving” matter is a minor, administrative infringement, comparable to a speeding fine, while only a “drunk driving” matter carries the legal consequences of drunk driving. That assumption is incorrect. In South Africa, driving under the influence of alcohol is a criminal offence prosecuted through the criminal courts, typically the Regional Court, and a conviction results in a criminal record. The administrative Adjudication of Road Traffic Offences framework, known as AARTO, adds a demerit and licensing layer on top of that prosecution, but it does not convert the criminal offence into a mere traffic fine.
- “Drink driving” is not a lighter offence. The phrase is an everyday label for the same section 65 charge, not a separate category with a reduced penalty.
- “Drunk driving” is not a different charge. It is the same section 65 offence, and the conviction recorded by the court will read the same regardless of which phrase the public uses.
- Both phrases cover both limbs. Whether the matter is built on a breath reading or on observed impairment, the charge is laid under the same section.
- The penalty does not turn on the label. Sentencing is at the discretion of the court and depends on the reading, prior convictions, and surrounding circumstances, not on the wording used to describe the offence.
How the offence is proved in court
A section 65 prosecution can be proved in two overlapping ways, and an experienced criminal law attorney will examine both when assessing the strength of the State’s case.
The over-the-limit limb is typically proved through the evidentiary breath alcohol test or through a blood sample drawn by a registered nurse or medical practitioner. The procedures governing the taking, storage, and analysis of these samples are tightly regulated, and the chain of custody must be intact from the roadblock or arrest through to the laboratory. Where a breath or blood reading is challenged successfully on procedural grounds, the over-the-limit limb may fall away, but the impairment limb can still be pursued on the available evidence.
The impairment limb is proved through the observations of the arresting officer and any other witnesses. Slurred speech, unsteady gait, the smell of alcohol on the breath, the manner of driving, and performance on field sobriety assessments may all be led in evidence. The court weighs these observations against any reading and against the evidence called for the defence. Because impairment is judged on the totality of the evidence, two drivers with the same reading can be treated differently depending on what else the State is able to prove.
Penalties for a section 65 conviction
Section 65 is a criminal offence, and sentencing is at the discretion of the court. The DUI penalties reflect the seriousness with which the law treats driving under the influence, and they escalate with the reading, prior convictions, and any harm caused.
- A fine. A monetary fine is common, particularly on a first conviction, and the amount increases with the seriousness of the matter.
- Imprisonment. A term of imprisonment may be imposed, especially where the reading is high, where there are prior convictions, or where the driving caused injury or death.
- A suspended or outright driver’s licence disqualification. The court may order that the driver be disqualified from holding a licence for a period, either wholly or in part.
- A criminal record. A conviction under section 65 is recorded against the accused and can affect employment, visa applications, and professional registration for years.
- AARTO consequences. Where the AARTO framework applies, demerit points are recorded against the driving licence and accumulate towards the suspension threshold.
- Insurance and employment fallout. Insurers may decline claims arising from an incident involving a driver over the prescribed limit, and employers may treat a conviction as a dismissible offence.
Refusing a breath or blood test
A common point of confusion concerns the right to refuse testing. The National Road Traffic Act requires a driver, when lawfully directed by an officer, to submit to a breath or blood test. Refusal is itself treated seriously. A refusal can be led as evidence capable of supporting an inference adverse to the driver, and it does not, on its own, defeat the section 65 charge. The impairment limb remains available to the State even where no reading is obtained, and a conviction can still follow on the officer’s observations.
The recommended course is to comply with the lawful directions of the officer, to preserve the paperwork issued, and to seek legal advice at the earliest opportunity. Cooperation with lawful instructions at the roadside is not an admission of guilt, and the formal defence of the matter proceeds through the criminal courts in the ordinary way.
Frequently Asked Questions
Is there a legal difference between drink driving and drunk driving in South Africa?
No. In South African law both phrases refer to the same criminal offence, namely driving under the influence of alcohol under section 65 of the National Road Traffic Act 93 of 1996. Section 65 prohibits both driving with a blood or breath alcohol concentration above the prescribed limit and driving while the ability to do so is impaired. The courts, the police, and the Road Traffic Management Corporation enforce a single offence, regardless of which everyday phrase is used.
What is the legal blood alcohol limit in South Africa?
For ordinary drivers the prescribed limit is 0,05 grams of alcohol per 100 millilitres of blood, or 0,24 milligrams per 1 000 millilitres of breath. For professional drivers, learner drivers, and novice drivers, a near-zero limit of 0,02 grams per 100 millilitres of blood, or 0,10 milligrams per 1 000 millilitres of breath, applies.
Can I be charged if my reading is below the legal limit?
Yes. Section 65 has two limbs. The over-the-limit limb is proved by a breath or blood reading above the prescribed threshold, while the impairment limb is proved by evidence that the ability to drive was affected by alcohol. A driver whose reading is below the limit can still be charged and convicted on the impairment limb if the State proves that the ability to drive was materially impaired.
Is drink driving a criminal offence or a traffic fine in South Africa?
It is a criminal offence. Driving under the influence of alcohol under section 65 of the National Road Traffic Act 93 of 1996 is prosecuted through the criminal courts, typically the Regional Court, and a conviction results in a criminal record. The AARTO administrative framework adds a demerit and licensing layer on top of that prosecution, but it does not replace it.
What happens if I refuse a breathalyzer test in South Africa?
The National Road Traffic Act requires a driver to submit to a breath or blood test when lawfully directed by an officer. Refusal carries its own consequences, can be used as evidence, and does not defeat the charge, because the impairment limb of section 65 remains available to the State. The recommended course is to comply with lawful instructions and to seek legal advice immediately.
What are the penalties for a drink driving conviction in South Africa?
Sentencing is at the discretion of the court and can include a fine, imprisonment, a period of driver’s licence suspension or disqualification, a criminal record, AARTO demerit points on the National Contraventions Register, and insurance and employment consequences. The court weighs the blood or breath reading, prior convictions, whether anyone was injured, and the personal circumstances of the accused.
Get help with a criminal law matter. A driving-under-the-influence charge is a criminal prosecution, not a traffic inconvenience, regardless of whether it is described as “drink driving” or “drunk driving”. Otrebski Attorneys’ Criminal Law team, based in Sandton, defends clients facing section 65 matters across Johannesburg and the wider Gauteng area. As a 100% women-led firm led by Director Nastasja Otrebski, with a 5-star Google rating across 12 reviews and a Level 4 B-BBEE rating, the team approaches each case methodically, from bail through to trial or representations.
Disclaimer. This article is general information about the terminology and statutory framework governing driving under the influence of alcohol in South Africa, and is not legal advice. The applicable law includes section 65 of the National Road Traffic Act 93 of 1996 and the Administrative Adjudication of Road Traffic Offences legislation, all of which may be amended. For guidance on a specific charge, confirm current requirements with the Road Traffic Management Corporation, the Legal Practice Council, the relevant Regional Court, or a qualified criminal law attorney.