Breathalyser on trial

2011-06-11 17:12

Drunk-driving cases countrywide are being withdrawn from court rolls as the National Prosecuting Authority (NPA) awaits the outcome of a precedent-setting trial.

The reliability of the Dräger Alcotest breathalyser is currently being challenged in the Western Cape High Court by Cape Town resident Clifford Hendricks, who was arrested in Athlone in January last year.

This has caused the NPA to withdraw and, in some cases, indefinitely postpone drunk-driving cases that rely on the evidence of Dräger tests.

Traffic authorities have now been forced to resort to cumbersome blood tests – the results of which are delayed by a backlog in blood tests at forensic laboratories.

According to the transport department, 13?877 drunk drivers were arrested in the six months between October 1 last year and April 30 this year.

The health ministry says the backlog in the analysis of drunken driving blood samples in January this year was 7 428 in Cape Town, 7 347 in Pretoria and?9 479 in ­Johannesburg.

City Press has established that:

» In Cape Town, at least 345 cases reported between May and June have either been postponed or provisionally withdrawn;

» At the Johannesburg Magistrates’ Court alone, more than 59 drunk driving cases were withdrawn between April and May, and

» In Durban and Bloemfontein, prosecutors say, all court cases ­involving the Dräger have been taken off the roll.

A senior official at the Khayelitsha Magistrate’s Court in Cape Town said all drunk driving cases were being postponed for up to four months.

“There is a mandate from top management to postpone indefinitely or provisionally withdraw cases,” the official said.

Traffic law enforcement officials in Cape Town, Durban, Polokwane and Bloemfontein have stopped using the device, but authorities in Gauteng say they use it in addition to blood tests.

Mthunzi Mhaga, an NPA spokesperson, confirmed that cases had been withdrawn pending a ruling on the reliability of results obtained using the Dräger machine.

“In some provinces cases have been withdrawn pending the Western Cape High Court case, while in some provinces cases have been postponed for the same reason.

“We are however confident that the ruling will be in our favour and precedent will be set on its (Dräger’s) reliability,” Mhaga said.

The case is expected to be finalised in August, says Derek Mitchell, senior counsel for Hendricks.

A resident of Kewtown in Athlone, Hendricks pleaded not guilty to the charge of driving with the concentration of alcohol on his breath above the legal limit.

The state claims his Dräger Alcotest result showed the alcohol content in his breath was above the legal limit, but Hendricks disputes this.

Hendricks is also disputing that he was the driver of the vehicle.

In court papers, Hendricks charged that the device used to test him was either not functioning correctly or operated by someone who was not well trained.

The Western Cape director of public prosecutions, advocate Rodney de Kock, has decided to refer Hendricks’ trial to the high court for legal clarity on the validity of the Dräger breathalyser.

Under normal circumstances, the case would have been heard by a magistrate’s court.

Derick Slabbert, Dräger’s local marketing manager, said about 300 units had been bought by various authorities across South Africa.

He said each unit cost R80?000, including training and certification. Slabbert said they sold the first unit to KwaZulu-Natal in 1998 and other provincial and metro traffic officials followed suit.

Stephen Tuson, a criminal law professor from the Wits Law Clinic, said the case might pose a dilemma for drunk-driving prosecutions if the judge declared test results by the Dräger breathalyser invalid.

“Those previously convicted for drunk driving (through Dräger tests) may well approach the courts and seek to set their convictions aside,” Tuson said. – Additional reporting by Paddy Harper, Cathy Dlodlo, Sandiso Phaliso and Piet Rampedi

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