Any person who exceeds the above limits during a breathalyser or blood test for alcohol at a road block can be arrested on a charge of driving under the influence of liquor. You are not entitled to refuse to take the test. If you refuse to take the test, you are committing a crime and the same punishment can be meted out to you as to someone driving with a blood alcohol level exceeding the prescribed limit.
The police officer is legally obliged to take the arrested person to a registered medical practitioner if blood tests have to be taken. The police officer may exercise the necessary violence that will force the person to provide a blood sample.
A breathalyser test or blood test for alcohol must be taken and have an incriminating outcome before a lawful arrest can be made. In terms of a recent finding in the Court of Appeal the police cannot lawfully arrest a motorist in the absence of such a test result. An arrest may not be made if the officer’s suspicion is based only on “the mere fact that he smells a bit of alcohol”.
When prosecuting the crime of driving with the blood alcohol level exceeding the prescribed limit, it must be proven that the concentration of alcohol in any blood sample of any part of the body of the person concerned exceeded 0,05 g per 100 ml at any time within two hours after the alleged offence was committed.
On prosecuting the crime of driving with the alcohol level of the blood exceeding the prescribed limit, it must be proven that the concentration of alcohol in any breath sample of the person concerned exceeded 0,24 mg per 1 000 ml at any time within two hours after the alleged offence was committed.
i) What are my rights if I am arrested for drunken driving?