Drunk Driving and the Blood Test

Posted on by volksvryheid

An official statement regarding the incident will be released by JMPD on eNCA tonight at 18.30.    A video has emerged on social media calling the protocol of drunk driving enforcement and prosecution into question.   This after a woman – who can be heard screaming hysterically throughout the clip – was allegedly held down by METRO police officers / traffic officers, while blood is drawn.

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A male officer holds her down while he can be heard saying, “You were supposed to convince her … There’s nothing we can do,” while talking about drawing her blood to test the amount of alcohol in it. Another female can be seen faffing over the woman, presumably to draw her blood, while another female JMPD officer can be seen smiling across the table.  This while the woman’s people wait outside the prefabricated unit, talking about lawyers and taking possible legal action.

About halfway through the video, the woman looks towards the camera, still hysterical, while METRO police officers try to close the blinds of the prefab, telling those filming the incident to leave. At this point in the video, another officer can be seen aggressively pushing the man filming the incident while demanding they leave, while the woman inside continues to cry and scream.

The Citizen obtained the video via Facebook, and it has also been shared on Twitter.

Comments on the video called into question the protocol of drunk driving prosecution, as it was not clear whether the other woman in the video was indeed a nurse or not.

Being caught drinking and driving in South Africa could see you face up to six years behind bars, and a hefty R120,000 fine, as well as a permanent criminal record.

According to Go Legal, the driver will first be breathalysed, and if found over the legal limit, a METRO police officer is within their rights to arrest and charge the suspect.

When it comes to drawing the blood of a suspected drunk driver, Section 65 (9) stipulates that the drunk driver is not permitted to refuse permission for a blood sample to be taken, but can insist to have their doctor present. The driver can also insist on being shown the syringe and needle that will be used on him/her.    Very rarely are METRO police officials tasked with drawing blood, with Section 37 (2) (a) stipulating that prison medical officers, district surgeons, registered doctors or nurses are allowed to take a blood sample.    In the video, another woman that appears to be handling medical equipment can be seen, but it is not yet clear if this was the nurse on duty tasked with drawing the hysterical woman’s blood.

JMPD spokesperson Wayne Minaar told The Citizen that they are aware of the incident, with MMC for public safety Michael Sun clarifying that the woman failed her breathalyser test, which necessitated the METRO police officer to arrest and escort her to the Douglasdale police station for further processing.

“I have noted with concern a video circulating on social media of a woman being restrained by [a] Johannesburg Metropolitan Police Department (JMPD) officer while another person, purported to be a nurse, appears to prepare to draw blood from the resident,” Sun said in a statement.

“The individual had allegedly failed a breathalyser test necessitating JMPD to arrest and take her to the Douglasdale Police Station, north of Johannesburg for further processing.”

Sun said the law did not permit a METRO police officer to physically restrain a person who refused to provide a blood sample for law enforcement purposes.

“The City, on noting this incident, has already commenced an internal investigation into the events leading up to the incident as well as to determine whether the appropriate use of force was used by law enforcement officials.”

Sun emphasised that should anyone in the video be found guilty of any wrongdoing, they would face disciplinary action.

https://citizen.co.za/news/south-africa/social-media/2152049/watch-douglasdale-police-forcefully-draw-blood-from-suspected-drunk-driver/

This happened in the Douglasdale Police station.
This girl said she had only one drink, but the issue here is the procedure when someone is scared of needles. I’ve seen a big guy cry if you bring a needle close to him. And then we have to look at the procedure to follow in these situations.
1) Who is the doctor or nurse in the video?
2) Why was this procedure not done in an ambulance at the road block or in a sterile environment? 
3)Where is the breathalyzer?
4) Did this girl lose her human rights the moment these officials thought she’s over the limit?
5)  Where is the doctor or medical people?
6)  Surgical gloves
7)  Is the syringe a new one or previously used?
8)  Why are there so many people looking and laughing at her?
9)  Where is her rights and any attorney?
10) Assault?

 

***

The district surgeon, registered nurse or a prison medical officer will take a specimen of an arrested driver’s blood, which is then submitted to a state laboratory for scientific analysis.
The analysis enables an expert to ascertain the presence and estimated quantity of alcohol in the person’s blood at the time of the examination.
If the specimen is taken within two hours of the commission of the alleged offence then, if the alcohol concentration of the specimen is not less than 0,05g per 100ml, the alcohol concentration in the blood at the time of the alleged offence will be presumed to have been not less than 0,05g per 100ml.
In terms of the amendment to the Road Traffic Act, the same presumption is made where the concentration of any alcohol in any specimen of breath exhaled by a person is not less than 0,38mg per 1000ml. However, the concentration in any breath specimen shall be ascertained by using the prescribed equipment. For this reason, the blood specimen will almost always be taken within two hours after the arrest.
A person arrested for one of the drink-and-drive offences is not entitled to refuse permission for a blood specimen to be taken. People authorised to take specimens are a medical officer of a prison, a district surgeon or, if requested to do so by a police official, a registered medical practitioner or a registered nurse.
Before the court can consider the results of the blood analysis, the state must prove that the analysis was made by an expert who had the necessary skill and that the specimen analysed was that of the accused. This is almost always done by means of an affidavit by the expert who performed the analysis. If the accused decides to challenge the facts contained in the affidavit, the expert may be called to give oral evidence.
If the specimen was contaminated in any way, the results of the analysis might not coincide with the actual alcohol concentration in the blood. For this reason precautions will be taken to prevent, for instance, the cleaning of the syringe or skin with alcohol. The Road Traffic Act, however, creates a presumption that once evidence of the analysis of the specimen is presented, it is presumed that the syringe used for obtaining the specimen and the receptacle in which the specimen was sent for analysis were not contaminated by something that could have affected the result. It is then for the accused to prove the contrary. (This presumption, however, goes against the presumption of innocence specified in the bill of rights and would thus probably not be relied upon by the state in a prosecution.) mens rea in the form of culpa (negligence) is an element of these offences. (See criminal liability or responsibility.)
Therefore, if an accused claims to have been unaware of having imbibed alcohol and if a reasonable person in a similar position would also not have known of this, it will be regarded as a valid defence.
An arrested driver can request that his or her medical practitioner be present when the blood specimen is taken.

https://www.arrivealive.mobi/drunk-driving-and-the-blood-test

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2 hour period limit for collection of alcohol specimen to stand up in Court:

Section 65 (3)… if for any prosecution (of Subsection 2) … a blood specimen must be taken within 2 hours of the alleged contravention…

Section 65 (6)… if for any prosecution (of Subsection 5)… a breath alcohol specimen must be taken within 2 hours of the alleged contravention.

Possible fines and consequences:

  • Fines of up to R120 000 or R180,00 for death or severe injury caused.
  • The laws allow a 9 year sentence for causing severe injury or death.
  • Automatic suspension of Licences. Sect 35 National Road Traffic Act states that Drivers licenses must be automatically suspended for:6 months as per the first offence;
  • 5 years for the second offence;
  • 10 years or more for third or subsequent offences.

 

https://sadd.org.za/education/the-law-faq/

 

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