NPA postponing all Dräger cases

2011-06-12 16:16

Johannesburg - All court cases where evidence was obtained using the Dräger breathalyser device have been provisionally withdrawn, the national prosecuting authority said on Sunday.

"The NPA is going to have all cases where the evidence was obtained using a Dräger provisionally withdrawn or postponed, pending the Western Cape High Court ruling," spokesperson Mthunzi Mhaga said.

Clifford Joseph Hendricks is currently challenging in the court the validity and accuracy of the Dräger apparatus used during his arrest last year. His alcohol vapour count was 0.95mg. The maximum allowed is 0.24.

"The ruling will set a precedent... we are confident that the NPA has a strong case in favour of the Dräger."

The device measures the volume of alcohol vapour in a drinker's exhaled breath.

A Durban man was cleared of drunken driving last week after his lawyer challenged the law regarding the use of the breathalyser device, the Sunday Times reported.

The Durban Magistrate's Court found hotel manager Aveer Inderjith, 22, not guilty after the State failed to "produce any evidence regarding the instruments used", according to court documents containing the ruling.

His lawyer Anand Nepaul was quoted as saying: "This was the first time I dealt with the legality of using that instrument to adduce evidence in court.

"The [transport] minister must sort the act out and get reliable equipment. You can't charge people where there is no law allowing the use of the equipment. First it has to be legal, secondly, reliable."

Durban police spokesperson Colonel Jay Naicker told the newspaper the city stopped using the Dräger system in April, and was now using blood tests.

  • Jayden - 2011-06-12 16:54

    No law allowing the use of the equipment.....eish!!!. If you are wealthy then you are above the law because a good attorney will be able to exploit any loophole in the system, our good old president comes to mind.

      burtfred - 2011-06-12 17:20

      Why is he now "good old" He doesn't think he's old (ask his ladyfriends and wives) and we don't think he's good.

  • Born To Fish - 2011-06-12 17:14

    Now this is what you get for having incompetent people handling advanced instrumentation.....One up for BEE!

      spacemonkey - 2011-06-12 18:50

      Breathalyzer results have been challenged all over the world. There's quite a bit of evidence that calls their accuracy into question, especially under certain conditions. See Worldwise's comments below, Google for plenty more debate. Why would you think this has anything to do with BEE?

      rozario.coetzee - 2011-06-12 20:17

      That is when you get a public prosecutor who, does not know the equipment the procedures and how it funtions. If the cops used it as prescribed than the fault lies with the prosecutor

  • Zion - 2011-06-12 17:40

    Drager equipment is used extensively on the mines for detecting flammable gas such as methane. They are easily calibrated and are highly reliable and simple to use. Drager is a world leader in the manufacture of these testing instruments and is an international company. If the instruments are used and calibrated properly then their reliability is unprecedented. To my knowledge there were very few, if any, problems with this equipment. The Drager is battery driven and problems will arise if the batteries are not maintained. Drager makes them in most formats to detect practically any gas. (umlaut on every a of Drager)

      BigD - 2011-06-12 18:17

      What I remember is that the model that was sent to SABS for testing was ok. Then some clever lawyer wanted them to prove that the system checked at SABS was the same as the one in case. Then they wanted all systems SABS tested - this is weird as the ISO should keep the quality of systems in check. The system is good as is the opposition system. But what I think they are complaining about is the operating procedures by the cops.

      Worldwise - 2011-06-12 18:26

      Zion, I am familiar with Drager industrial gas measurement equipment as well. The accuracy of the instrument is not the question in the drunken driving case. Its more of a medical question. The defendants are claiming that the amount of alcohol in the breath can vary from person to person as well as being dependant on how long ago the last drink was taken. They are claiming there is no consistency regarding the body's ability to expell alcohol. For example, If I take a swig of neat brandy and you test me, I will appear over the limit, even though I have no alcohol in my bloodstream yet and I am stone cold sober. I could thus be convicted of DUI while I was stone cold sober. The question is; - When does the Drager instrument reflect the true blood alcohol reading, which is the only medical criteria for intoxication? This will vary from person to person and is the basis of the court case. Some mouthwashes will produce a reading on the instrument. The cops jumped and grabbed a very accurate insrument. They consulted the scientific community regarding the accuracy of the instrument, but failed to consult the medical fraternity regarding individual responses to alcohol and the legal criteria regarding intoxication. A little bit of knowledge is dangerous.

      jywilmos - 2011-06-13 07:33

      @Worldwise. Impairment or intoxication, quite rightly due to the vast spectrum of subjectivity required, is not contemplated in the law governing blood or breath alcohol levels and driving, so your argument is invalid, as is that of the defence.

      Zion - 2011-06-13 15:01

      Worldwise, I did wonder about this duality but assumed it was correlated with blood alcohol levels in some way or other. Thanks for this info.

  • rozario.coetzee - 2011-06-12 19:50

    There is a differrence and the Drager has reference to breath alcohol concentration and not blood alcohol concentration, which is two different things. that's why if a test is performed and the suspect or accused person, just drank the operator have to wait 15 minutes before the test is performed with the drager 7110

  • jywilmos - 2011-06-13 07:30

    Rich men with lawyers win again: National Road Traffic Act, 1996 National Road Traffic Regulations, 1999 Chapter XII : Matters relating to driving while under influence of intoxicating liquor or drug having narcotic effect, and offences and penalties 332. Equipment used in ascertaining concentration of alcohol in breath 1) The following equipment are prescribed equipment in terms of section 65(7) of the Act, complies with SABS 1793: Evidential Breath Testing Equipment or SANS 1793: Evidential Breath Testing Equipment and may be used to ascertain the concentration of alcohol in breath - a) Drager Alcotest 7110 MK III Part No 8314647 (Germany); b) Drager Alcotest 7110 MK IV Part No 35307791 (Australia); and c) Intoxilyzer 8000.

  • Adams - 2011-06-13 08:21

    If it is concluded the equipment is not accurate, what will happen to those previously convicted on the basis of the equipment results?

  • preshengovender69 - 2011-06-13 08:43

    I once ate charcoal before a Drager and pass the test

      Worldwise - 2011-06-14 17:17

      Absolute bull. You mean to say the cops didn't notice your mouth and the mouthpiece of the instrument were black? Really, you're stretching the bounds of credibility. Rather stick to making infantile comments on the sex forum of Women24.

  • MoBoPc - 2011-06-13 18:48

    In Western Australia they use the evidentiary drager at a police station. The handhelds used on the side of the road just give an indication whether further testing is needed. Then at least 20 minutes has to lapse from the roadside test till the evidentiary test at a police station so mouth alcohol is eliminated. You can swig mouth rinse and blow way over then come up zero at the station. The evidentiary test done at the station measures alcohol on the breath that would be expelled from the lungs and the lungs give off what is in the blood therefore accurate.

  • gaeleen - 2011-06-14 14:42

    Why is this test not followed up with a blood alcohol test to verify the level of alcohol in the blood. Pity this is being pulled off because it is easier and quicker to use at road blocks. it is also probably more hygienic. do the Drager test = positive then do blood test ---simple is it not!

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