It’s a wait and see for Dräger Breathal­yser

Weekend Argus (Sunday Edition) - - NEWS - NOR­MAN CLOETE

THE City of Cape Town said 20 064 driv­ers were sub­jected to breathal­yser tests over the fes­tive sea­son with 694 driv­ers ar­rested for driv­ing un­der the in­flu­ence.

Ac­cord­ing to a le­gal ex­pert, “only time will tell if the new breathal­yser test­ing unit will hold up in court if chal­lenged”.

At­tor­ney Mar­cello Stevens told Week­end Ar­gus that the is­sue of breathal­yser tests has caused much de­bate since 2011 when cases were with­drawn after the Cape High Court ruled “the Dräger Breathal­yser sys­tem did not meet ev­i­den­tiary stan­dards set out by our law”.

Judge Nathan Eras­mus ac­quit­ted 28-year-old Clif­ford Hen­dricks, who was charged with drunken driv­ing in Jan­uary 2010.

“The lack of tech­ni­cal com­pli­ance and im­proper cal­i­bra­tion pro­to­col were the main cul­prits dur­ing that pe­riod and the use of that ma­chine was scrapped,” said Stevens.

How­ever, in De­cem­ber 2017, Trans­port MEC Don­ald Grant an­nounced the launch of the new Mo­bile Al­co­hol Ev­i­den­tiary Unit which it said makes it pos­si­ble to do rapid on-the-spot checks to de­ter­mine whether a driver is un­der the in­flu­ence while at the same time in­creas­ing the like­li­hood of a suc­cess­ful pros­e­cu­tion.

Grant said the new but im­proved mo­bile unit works in ex­actly the same way as the ex­ist­ing in­fra­struc­ture in­side the Van­gate Al­co­hol Ev­i­dence Cen­tre (AEC), which is re­quired when prop­erly ad­min­is­ter­ing Ev­i­den­tiary Breath Al­co­hol Test­ing (EBAT), com­monly known as the Dräger breathal­yser.

The unit was “re­pur­posed” at a cost of just over R400 000 and was de­signed to meet the same pre­scribed stan­dards of the Van­gate Al­co­hol Ev­i­dence Cen­tre.

Stevens said the pro­vin­cial trans­port depart­ment claimed that it has now com­plied with the court’s re­quire­ments.

He added that the lat­est case cur­rently in the Western Cape High Court in­volves the same le­gal chal­lenge to test the va­lid­ity of the work­ing of the ma­chine. Stevens said in the event where blood sam­ples are taken po­lice have a stronger case.

“The re­sults are more ac­cu­rate as the stan­dards and norms of test­ing are more recog­nised not only lo­cally but in­ter­na­tion­ally,” said Stevens.

He added that chal­lenges are lim­ited to in­stances where the state fails to prove that blood was drawn and an­a­lysed cor­rectly and this usu­ally leads to ac­quit­tals.

“Blood must be drawn within two hours of the sus­pect’s ar­rest and should be drawn by a reg­is­tered med­i­cal pro­fes­sional. Out­dated blood kits and bro­ken seals are the usual rea­sons for cases be­ing with­drawn,” added Stevens.

He said drunk-driv­ing cases are reg­is­tered and sent to court and will only be with­drawn if the blood anal­y­sis report is un­avail­able. The cases will then be en­rolled once the report is ob­tained.

Ac­cord­ing to Stevens, it is yet to be shown that the new ma­chine passes the court’s scru­tiny once it has been chal­lenged and in the Western Cape the new ma­chine has been chal­lenged and the court has not yet con­firmed its ac­cu­racy.

If cases are not reg­is­tered and brought to court it usu­ally means that the state must com­plete cer­tain is­sues in the in­ves­ti­ga­tion.

“En­quiries into the sus­pen­sion of the driver’s li­cence is also done as part of the sen­tenc­ing pro­ceed­ings. First of­fend­ers can face up to a six month sus­pen­sion of their driver’s li­cence,” said Stevens.

Stevens added that the new mo­bile test­ing sta­tions are not ex­empt from scru­tiny. Breathal­yser tests are usu­ally used to mea­sure whether a per­son should be sub­jected to a blood sam­ple test.

“It is dif­fi­cult to chal­lenge both breathal­yser as well as blood anal­y­sis if both re­sults cor­rob­o­rate each other.

“If how­ever the breathal­yser is used on its own, its ac­cu­racy can be chal­lenged. Once its ac­cu­racy is chal­lenged the case has to go on trial where the ac­cu­racy and cal­i­bra­tion must be proved by the pros­e­cu­tion. A cal­i­bra­tion cer­tifi­cate must then be pre­sented to prove that the spe­cific ma­chine was cal­i­brated ac­cord­ing to the op­er­at­ing man­ual,” warned Stevens.

AA spokesper­son Lay­ton Beard said they view the in­tro­duc­tion of the unit as a “pos­i­tive step”.

At­tempts to get com­ment from the Na­tional Prose­cut­ing Au­thor­ity about the suc­cess rate of drunk-driv­ing pros­e­cu­tions went unan­swered.


More than 20 000 driv­ers were sub­jected to breathal­yser tests over the fes­tive sea­son.

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