Drunk Driving in South Africa

Driving under the influence of alcohol is treated as a serious criminal offence in South Africa, not as a traffic infringement. It is prosecuted under section 65 of the National Road Traffic Act 93 of 1996, and a conviction produces a criminal record, a period of imprisonment, a fine, or the suspension of a driver’s licence. For many motorists the first contact with this area of law happens at a roadside, often late at night, with very little warning.

This guide brings together the rules that matter in practice: the legal alcohol limits, the powers the South African Police Service and metro police exercise at a roadblock, what happens after an arrest, how the court process unfolds, and the penalties a court can impose on conviction. It is written for drivers who want to understand the law before they find themselves inside it, and for those who are already dealing with a charge.

The focus throughout is on the statutory framework. References to the legislation are included so that the position can be checked against the original sources, because the consequences of a drunk driving case are too long-lasting to rely on rumour or on what happened to someone else.

The Legal Alcohol Limits for Drivers

Section 65 of the National Road Traffic Act 93 of 1996 sets the alcohol limits that apply on South African roads. The limits are deliberately low, and they are different for ordinary drivers and for drivers who earn a living on the road.

• Ordinary drivers: no more than 0.05 grams of alcohol per 100 millilitres of blood, or 0.24 milligrams of alcohol per 1 000 millilitres of breath.
• Professional drivers: no more than 0.02 grams of alcohol per 100 millilitres of blood, or 0.10 milligrams of alcohol per 1 000 millilitres of breath.

For an ordinary driver the limit is roughly the equivalent of less than one standard drink, and body weight, food intake, and the rate at which a person metabolises alcohol all make it impossible to predict reliably whether a single drink will keep a driver below it. The safer approach, and the one the law effectively demands, is not to drive at all after drinking.

The professional driver limit applies to the driver of a public transport vehicle carrying passengers for reward, and to the driver of a goods vehicle with a gross vehicle mass exceeding 3 500 kilograms. For these drivers the law is stricter still, reflecting the risk that the vehicle and the passengers create.

The Section 65 Offence

Section 65 of the Act creates more than one offence. It prohibits driving, or occupying the driver’s seat of a motor vehicle of which the engine is running, while the concentration of alcohol in the blood or breath exceeds the prescribed limit. It also prohibits driving while under the influence of intoxicating liquor or a drug having a narcotic effect.

These are two distinct limbs. A driver can be charged on the basis of an evidentiary reading, that is, on the blood or breath result alone, even where there is no obvious sign of impairment. Equally, a driver can be charged on the basis of impairment, where the reading is unavailable or contested but the officer’s observations and field evidence establish that the driver was under the influence.

Understanding which limb the State relies on matters for the defence, because each calls for a different set of challenges. Readings bring the calibration and handling of the breathalyser, and the chain of custody of the blood sample, into play, while impairment cases turn on the observations of the arresting officer and any field sobriety indications recorded at the scene.

The Arrest Procedure at the Roadside

Drunk driving arrests in South Africa most often happen at a roadblock or after a moving violation. A traffic officer who forms a reasonable suspicion that a driver is over the limit may require the driver to submit to a preliminary breath test, usually carried out by means of a handheld screening device. A positive screen does not by itself prove the case, but it gives the officer grounds to take the matter further.

Where the screen is positive, or where the officer’s observations indicate impairment, the driver is arrested and taken to a police station or an approved testing centre for an evidentiary breath test, conducted on an approved evidentiary instrument, or for the taking of a blood sample by a registered medical practitioner or registered nurse. The choice between breath and blood is governed by the equipment available and by the procedures set out in the Act.

• The arresting officer must inform the arrested person of the reason for the arrest.
• The arrested person must be advised of the right to remain silent and the right to legal representation.
• A blood sample, where one is taken, must be drawn within a prescribed period of the arrest, commonly two hours, by an authorised person and in the presence of a police officer.
• The samples and the evidentiary readings must be properly recorded, sealed, labelled, and transmitted to a laboratory for analysis.

The arrest itself is governed by the Criminal Procedure Act 51 of 1977. An arrested person must be brought before a court within 48 hours of the arrest, or, where the 48-hour period ends on a weekend or public holiday, on the first court day thereafter. Until then the person may be released on bail at the police station, warned to appear, or detained, depending on the circumstances.

Bail, Detention, and the First Court Appearance

Bail in a drunk driving matter is regulated by section 50 of the Criminal Procedure Act and, where the matter is opposed, by the provisions of the Bail Act, the Criminal Procedure Act’s schedule of offences, and the policy directives issued by the National Director of Public Prosecutions. In practice, first-offence matters, where there is no accident, no injury, and no prior record, are often disposed of by way of police bail or prosecutor-assisted bail before the first court appearance.

Where the matter is opposed, or where there are aggravating features, the question of bail is decided by the court. The court considers whether the interests of justice permit release, having regard to the likelihood that the accused will stand trial, the risk to public safety, and the possibility of interference with witnesses or evidence.

The first appearance is a short one. The charge is put, the accused is asked to plead, and the matter is usually postponed for further investigation, for the analysis of the blood or breath evidence, and for legal representation to be arranged. It is rarely advisable to plead at the first appearance without having taken advice on the docket.

The Court Process After Arrest

Once the matter is on the court roll it proceeds along the path familiar to criminal matters in the regional or district magistrate’s court. The State must disclose the docket to the defence, the evidentiary material, the analyst’s report, the arresting officer’s statement, and the chain of custody documentation are examined, and the accused enters a plea.

A plea of not guilty takes the matter to trial. The State is required to prove every element of the offence beyond reasonable doubt, and the defence is entitled to test the State’s case through cross-examination, the admission of expert evidence on the reliability of the reading, and argument on the procedural compliance of the arrest and the taking of samples.

A plea of guilty, or the payment of an admission of guilt fine, disposes of the matter but produces a conviction and a criminal record. Before pleading guilty, or paying any fine offered at the police station or court, it is worth understanding what happens to a first, because the consequences run well beyond the day in court.

Penalties for Drunk Driving on Conviction

The penalty for a section 65 offence is set by the National Road Traffic Act and is enforced through the sentencing discretion of the court, read with the customary principles of sentence in South African criminal law. A court can impose one or more of the following:

• A fine. A monetary penalty, with or without the option of imprisonment.
• Imprisonment. A term of imprisonment, which for the section 65 offence may extend to six years for a first offence, and which is longer where there are previous convictions or aggravating factors.
• Suspended sentence. An imprisonment sentence suspended in whole or in part, usually on conditions, including a period of good behaviour and non-conviction.
• Licence suspension or endorsement. Suspension or cancellation of the driver’s licence, or an endorsement on the licence record, which can affect employment that depends on driving.
• A criminal record. The conviction is entered on the South African Police Service National Criminal Register and remains there until it is expunged.

Aggravating factors push the sentence towards the upper end. These include a reading well above the prescribed limit, prior convictions for the same offence, the presence of children in the vehicle, an accident, injury or death, driving at excessive speed, or attempting to evade the police. Where a drunk driving charge arises out of a fatal accident, the State may also bring charges of culpable homicide, or, in appropriate cases, murder, on the doctrine of dolus eventualis.

The wider, non-statutory consequences can be heavier than the sentence itself. Insurance cover can be declined or premiums increased, professional registration can be affected, visa applications can require disclosure of the conviction, and the criminal record can be discovered on any police clearance certificate.

Defences and How a Drunk Driving Case Is Challenged

A charge is not the same as a conviction. A section 65 prosecution depends on the State proving the offence beyond reasonable doubt, and there are a number of recognised grounds on which the case can be challenged.

• Compliance with procedure. Whether the arrest was lawful, whether the accused was properly informed of rights, and whether the samples were taken within the prescribed period and by an authorised person.
• Chain of custody. Whether the blood sample was sealed, labelled, stored, and transmitted to the laboratory in a manner that excludes tampering or contamination.
• Instrument reliability. Whether the evidentiary breath instrument was calibrated, certified, and operated in accordance with the manufacturer’s specifications and the relevant regulations at the time of the test.
• Analyst evidence. Whether the blood alcohol analysis was performed by a competent analyst and reported in a manner that satisfies the evidentiary rules.
• Impairment evidence. In impairment cases, whether the officer’s observations, taken alone, are sufficient to prove beyond reasonable doubt that the accused was under the influence.

The chain of custody is often the decisive issue. Our discussion of the chain of evidence in explains why this line of defence matters and how it is developed on the papers in the docket.

Frequently Asked Questions

What is the legal alcohol limit for drivers in South Africa?

Under section 65 of the National Road Traffic Act 93 of 1996, ordinary drivers may not exceed 0.05 grams of alcohol per 100 millilitres of blood, or 0.24 milligrams per 1 000 millilitres of breath. Professional drivers, including drivers of public transport for reward and drivers of goods vehicles over 3 500 kilograms, are held to a lower limit of 0.02 grams per 100 millilitres of blood, or 0.10 milligrams per 1 000 millilitres of breath.

Can you refuse a breathalyser test in South Africa?

No. Section 65 of the National Road Traffic Act requires a driver to submit to a breath or blood test when lawfully directed to do so by a traffic officer. Refusal is itself an offence, and it does not prevent the State from proceeding: the officer may arrest the driver and require an evidentiary breath test or a blood sample at a police station or approved testing centre.

How long can you be detained after a drunk driving arrest?

Under section 50 of the Criminal Procedure Act 51 of 1977, an arrested person must be brought before a court within 48 hours, or on the first court day after a weekend or public holiday. Release on police bail, prosecutor-assisted bail, or a warning to appear is common in straightforward first-offence matters, while opposed matters are decided by the court.

What is the maximum sentence for drunk driving in South Africa?

A first conviction under section 65 of the National Road Traffic Act can attract a fine, with or without the option of imprisonment, or imprisonment of up to six years, together with suspension or endorsement of the driver’s licence and a permanent criminal record. Aggravating factors, prior convictions, or a fatal accident can result in a substantially heavier sentence, and where a death is involved the State may bring additional charges such as culpable homicide.

Does a drunk driving conviction give you a criminal record?

Yes. A conviction under section 65 is recorded on the South African Police Service National Criminal Register and remains there until it is formally expunged. Paying an admission of guilt fine has the same effect, because it amounts to a conviction. The conviction can be disclosed on police clearance certificates, employment vetting, visa applications, and professional registration checks.

Get help with a criminal law matter. If you have been arrested, charged, or convicted for drunk driving, the Criminal Law department at Otrebski Attorneys can advise and represent you. We are a 100% women-led firm with a Level 4 B-BBEE rating, rated 5 stars across 12 reviews, working from our single Sandton office, and our Director Nastasja Otrebski leads the team that assists clients across Gauteng and South Africa.

Disclaimer. This article is general information about South African criminal and road traffic law, not legal advice for a specific matter. The alcohol limits, arrest procedure, sentencing ranges, and bail rules summarised here are set out in the National Road Traffic Act 93 of 1996, the Criminal Procedure Act 51 of 1977, and their regulations, and they can change. Outcomes depend on the facts of each case. For advice about a particular charge or arrest, consult a qualified attorney or Legal Aid South Africa.