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.

  • POLLENYS - 2011-09-09 19:12

    Can't they for once and all devise a foolproof device that offers no escape for drunken drivers? It seems so easy for them to find loopholes.

      HowardX - 2011-09-09 20:21

      They had a foolproof system - it was a blood alcohol test. Unfortunately, the authorities thought they knew better and could circumvent the legal process with a breath alcohol only test, and this is the consequence. What they failed to realise in their incompetence and zeal to cut costs, is that breath alcohol cannot be converted into an accurate blood alcohol reading, and only blood alcohol is a valid scientific and legal measure of intoxication. Some examples of the problems: - if you hyperventilate before the test, you can reduce the breathalyser reading by up to 20%. - if you have ingested alcohol very recently such that it is unabsorbed in your stomach, the breath test will provide a much higher reading than it should. - as mentioned in the article, there are various other factors that make the breath test unreliable (dentures, etc) I am not condoning drunk driving, but I do feel strongly in fairness and justice. Blood alcohol testing is the only tried and tested and accurate measure of inebriation, so lets not use dodgy methods and equipment and ensure that when people are convicted of a crime it is done scientifically and fairly.

      POLLENYS - 2011-09-09 20:32

      @Howard X I thought the Daeger has been scrutinised and accepted in many EU countries?

      MikeLearview - 2011-09-09 21:56

      In other countries, it's also possible to do a urine test. This doesn't seem to apply to South Africa, maybe because they don't like to take the piss out of an Afrikaner.

  • Brainbow - 2011-09-09 19:58

    Alcohol is a drug like any other substance, open for abuse. The (potential) hero (in) are our law enforcement officers. DrUnk DrIvers.... beware. This is no let off.....

  • Janine - 2011-09-09 20:09

    Another drunk driver let off the hook to re-offend.

      HowardX - 2011-09-09 20:24

      The fault is entirely the authorities for dropping the foolproof blood alcohol test.

      Janine - 2011-09-10 01:45

      @HowardX - I agree completely. Blood testing is definitely the way to go.

  • africanwolf - 2011-09-09 20:23

    there is a joke about a breathalyser when a traffic cop stops a driver, and tell him to breath. after the driver breathed, the cop tells him, you are drunk pay R1000 fine. then the cop stops the next car and tells the driver also to breath the driver tells him are you crazy ? this is a 'condom' the cop replied , you can go you are not drunk.

  • myancmyfutur - 2011-09-09 20:27

    The NPA must appeal

  • Mart - 2011-09-10 09:46

    Firstly to Clifford know and I know, and now so does every other 'responsible person' that reads this, 'YOU ARE A TOOL !!' Secondly, it is too late to say 'sorry' once you have killed someones child.....don't be an idiot, make a plan and don't drive if you've had any alcohol or are on medication or for whatever reason you are not functional. Just as importantly, don't let someone else do it either. Here's a promise to you, you hurt my child and I will hunt you down and kill you!

  • brinjal - 2011-09-11 19:00

    This case is about the foolproof validity of the Draeger device, ffs people any one of you could be tested positive if it's not 100% reliable.

  • annamicky - 2012-05-19 21:57

    But they don't add in these machines the things that can cause a fail when having this device in your car. Such as not being able to eat doughnuts or certain breads that contain yeast, wearing cologne will cause a fail which happened to my husband, of course things as mouth wash with alcohol. But the courts don't look at that, they just assume they were drinking just because they failed on the test which was caused by other factors. My husband has been sober for 4 years and has another year or two with this stupid machine.

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