Cape court rules against breathalyser

2011-09-09 19:02

Cape Town - The Western Cape High Court has dismissed a drunken driving charge against a Cape Town resident after finding problems with the Dräger breathalyser test performed on him.

Judge Nathan Erasmus made the ruling on Friday in acquitting 28-year-old Clifford Hendricks, who was charged with drunken driving in January 2010.

"I am of the view that save for the fact that the accused was the driver of the motor vehicle on a public road on the day in question, the State failed to prove any of the other elements of the offence as charged," Erasmus said.

"Consequently the accused is acquitted of the charge."

Hendricks had challenged the validity of a Dräger breathalyser test of his breath alcohol level, which found him to be four times over the legal limit.

The National Prosecuting Authority in the Western Cape brought the use of the Dräger to court to prove its reliability.

The breathalyser's accuracy had been brought into question on several previous occasions.

In his judgment, Erasmus said the certificate of the operator who performed the test on Hendricks was dated February 12 1999. However, the test in question was programmed with software finalised only in December 1999.

"There is no certificate to prove that the operator was trained in terms of the software version 1.1 on the Alcotest that was used in producing this result," he said.

Erasmus also found that a person's body temperature, or whether he wore dentures, could lead to a false reading on the Dräger.

A spokesman for Western Cape Transport MEC Robin Carlisle said although the ruling "seemed like a setback", Erasmus had provided clarity on how the Dräger testing process had to be applied in future.

"This has never been tested before this way in court and now we understand what the road ahead looks like," Steven Otter said.

"It provides us with the opportunity to get the system going perfectly."

He said the court had accepted the constitutionality of the device and even encouraged its use.

"The court said we are in complete support of the device, but here's what's wrong with the process."

In future, the test would be as quick as a driver being stopped in car, doing a blow test and then being taken to a Dräger centre for a further test.

"The result will be instant and the conviction will be far faster," Otter said.

- SAPA