Drink driving defence arguments can be intoxicatingly bizarre
YEARS ago I was involved in a murder case and one of the leading witnesses was from Chatsworth.
When I asked him how much he had to drink on the evening in question, he answered with revealing and somewhat ambiguous candour.
He said: “M’Lord, I was a little bit sober!”
That degree of intoxication is subject to harsh penalties under our driving laws and rightly so as many tragic deaths flow from drunkenness. A recent event which I will relate hereinafter (so lawyerish!) reminded me of my early career as defence counsel in some drunken driving cases and the stories that abounded during those times.
Before the advent of the ubiquitous breathalyser, the only reliable guide to intoxication was to take a sample of blood and test the alcohol content. The defences raised were ingenious and, surprisingly, successful in some instances. One accused claimed the accident had so distressed him he needed some fortification to restore his nerve.
His drinking after the accident saved him from conviction but legislation was quickly passed to make it an offence to drink in those circumstances. In another case, a clever lawyer probed what the doctor used to clean the arm before withdrawing the blood. When the doctor revealed he cleaned the skin with an alcohol solution, the lawyer argued the source of the delinquency lay with the doctor.
If the imagination of the reader is not stretched beyond its elastic limit with these lawyer stratagems, prepare for more elaborate defences.
An accused from the Western Cape claimed the doctor withdrew the blood from his left arm and he drove with his right. This plea was upheld despite common knowledge that the blood circulates throughout the body several times every minute. The law was then changed so that the court was able to presume that the blood sample was representative of his entire supply.
The introduction of the breathalyser led to many stories, apocryphal and otherwise, of exchanges between the patient police and the creative inebriant.
“Officer, I cannot blow into that thing, because I am an asthmatic and I will die if I do so!” The cop tried another strategy. “Officer, I cannot allow you to take blood, as I am a haemophiliac and I will bleed to death if you insert a needle!” With a smirk the officer pulled up the triumphant accused and pointed to a long white line with a request to walk along it. “Officer, I cannot possibly do that, I have had too many drinks!”
On a recent holiday to Romania, our tour guide told us of the experiences of a young blonde girlfriend of his youth. Drunk after a party and giggling with bonhomie, the young well-endowed woman was approached in the semi-dark by an officer who thrust something through the partially opened window and imperiously ordered her to “Blow!”
Confused and disturbed she blurted out her best riposte.
“Shouldn’t we kiss first, Officer!?”
The local constabulary conducting these drunken driving tests have evolved clever methods of judging who is a likely candidate for time in the local dungeons. Loud music in the car, a loose tie, dishevelled appearance and bloodshot eyes are sure signs of overindulgence. Slurred speech, an unsteady gait and belligerence are other indications that the law is being transgressed.
My good friend Dumpy Dyer tells a tale which illustrates how sharp the guardians of law can be. A friend of his – and it is strange how these incidents never happen to the relator – was stopped and asked whether he had been drinking and replied strongly in the negative. He had obeyed all the rules and there was no blaring music, his clothes were neat and he spoke in dulcet tones to the policeman. He battled to work out how he had been caught.
The police constable manning the roadblock gave evidence and was asked what had alerted him to any insobriety. He smiled ruefully and explained what the accused had said in answer to his initial greeting.
“Good afternoon, Sir. Have you been drinking during your lengthy lunch?”
The accused smiled wryly and shook his head. “Good Afterbull, Cunsternoon!”
That is a warning against any impolitic salutation. Of course, when the offender admits at the scene that he is inebriated it makes it very difficult to avoid conviction. Not that there cannot be semantic difficulties, as one case from northern KwaZulu-Natal illustrates.
The traffic officer, a Van der Merwe, was being questioned about his arrest of the accused when Van der Merwe testified that he (that is the accused) said he was drunk. In other words the accused was admitting that he was drunk at the time of his arrest. This is the exchange of questions by the various parties.
Judge: Now Mr Van der Merwe, I want the accused’s exact words. Just as he said them. He didn’t use the pronoun he, did he?
Van der Merwe: Oh, yes. He said he was drunk.
Judge (impatiently): No you don’t understand. I want the very words he spoke. Did he say “I was drunk”?
Van der Merwe: You may have been drunk, M’lord, but the accused didn’t mention your name.
Prosecutor: Look, Mr Van der Merwe, you still don’t understand. The judge means did the accused say to you “I was drunk”?
Van der Merwe: He might have said you was drunk, but I didn’t hear him mention your name either.
Defence counsel: Here let me try. Listen, Mr Van der Merwe, in our English syntax, our English grammar, we have three persons. The first person is I; the second person is you; and the third person is he, she or it. Now did my client the accused, in his exact words, use the first person? Did he say “I was drunk”?
Van der Merwe: No, Mr Advocate, he didn’t say you was drunk. He said he were drunk and if you don’t stop asking me all these questions I’m going out to get drunk, too.
All this levity should not deflect public attention from what is a very serious problem. The carnage on the roads is testament enough of the continuance of this scourge and no feeble jokes can justify it. And it seems the lawyers will continue trying to secure acquittals for clients charged with these offences.
Which brings me to a recent account – again from a friend – that shows how fate conspires to reward the generous of heart. This person suspected that some pilfering was taking place in his home but, being a decent type, attributed it to a mild form of income redistribution. Not expecting to have to drive, he indulged in a number of hefty gins while entertaining some friends during the festive season. As he gazed out across the street he saw a car running over a small dog, which lay writhing in agony. He rushed to his car, picked up the dog and sped off to the vet.
The dog was saved and on his way back, the constabulary, armed with their breathalysers and needles, waved him to a halt and performed their legal duties.
“Just below the limit, my friend,” said the burly cop, “But please be careful in future.”
As he raised his head in praise to the forgiving deities that rule our lives, his mind agonised over one simple question. How could five or six double gins record such a low score on the Richter scale of intoxication?
Reaching home he grinned from ear to ear.
“Do you know what happened to me?”
The guests listened while he explained his good fortune. His best friend laughed heartily and guessed the truth. He strode to the gin bottle and took a great swig. Almost 90% proof ! Not the distilled genius of the juniper berry but good old aqua vitae.
At last – a defence that holds water!