Can You Defend a Drunken Driving or Driving Under the Influence Charge

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The State bears the onus to prove the guilt of an accused person beyond a reasonable doubt. There is no onus on the part of an accused to prove his or her innocence.

Drunken driving defenses can be broken down into various areas which includes the following:

  • The first thing that the State must prove is that you were the driver of a vehicle on a public road, or that you were behind the steering wheel of a motor vehicle while the engine is running (on a public road), while under the influence of intoxicating liquor or a drug having a narcotic effect. If the State cannot prove these things, these charges will fail, and you cannot be convicted. It is imperative to use your right to remain silent if you get arrested – do not make any admissions or confessions.
  •  "Under the influence": This concept has diverse meanings for different people and the arresting officer gets cross examined on his observations and opinions regarding your alleged intoxication. I.e. you may naturally have dry red eyes, you may walk with a natural limp which the Officer may have attributed to intoxication etc.
  • Specific procedures must be followed by the Arresting Officer, by the person taking your blood sample and by the Forensic Analyst that must test and analyse your blood specimen content.
  • Many things can go wrong with the analysis of your blood samples, for example the SAPS Forensic Science Laboratory and other independent accredited laboratories whom are supposed to apply scientific principles, methods and techniques to the process of investigation have been found, on many occasions, to be wrong or negligent in the way that they handled their analysis and reports.
  •  If you have anything to eat or drink during the absorptive phase then your blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol.
  • The State must use the correct protocols and “prescribed equipment” and can only use accredited test laboratories.
  •  Even if the State uses the prescribed equipment, the said equipment must be tested and maintained in terms of specific requirements with regards to issues such as to calibration and maintenance of the equipment.
  • The same things that the Court will consider pertaining to blood samples is applicable to breathalysing equipment.
  • The breathalyser equipment (make and model) must be tested in terms of South Africa National Accreditation System by an accredited test laboratory. A report must be available that states that the equipment complies with standard specifications with regards to the specified equipment.
  •   The “Prosecuting Guidelines for Evidentiary Breath Testing Machines” deals with the specific requirements that must be met before a test can be conducted. This includes things such as; that the equipment must be operated on by an Officer that has successfully passed a course to operate the equipment. The Operator Certificate must be on the Officer when the test is conducted, and the equipment must be calibrated as per the equipment specification.


Martin Vermaak

Practising Attorney

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