It’s a wait and see for Dräger Breathalyser
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Stevens told Weekend Argus that the issue of breathalyser tests has caused much debate since 2011 when cases were withdrawn after the Cape High Court ruled “the Dräger Breathalyser system did not meet evidentiary standards set out by our law”.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 Outdated blood kits and broken seals are the usual reasons for cases being withdrawn,” added Stevens.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.