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JW Fourie
JW Fourie, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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My wife was breathalized last Friday evening & found tobe over

Resolved Question:

My wife was breathalized last Friday evening & found tobe over the limit when
instructed to take the breatherliser tes.She was taken toRobertson Hospital to give a sample of blood.Thehospital was unable to take a sample within the two hour period
andwas told that the offence she committed could be cancelled when aprosecutor considered her case.
Is
it possible that she could be prosecuted without the blood sample being taken?
Submitted: 3 years ago.
Category: South Africa Law
Expert:  JW Fourie replied 3 years ago.
Hi, my name is XXXXX XXXXX I will try and assist you today.

There are two offences related to alchohol and driving. The first being driving while under the influence of alcohol and the second driving with a blood alcohol level above the legal limit.

Drunk driving relates more to the way you drive. The State needs to prove that you drove whilst drunk by producing evidence that shows that you drove maybe erratic or reckless. This is what these old "walk on a straight line" tests are for.

The second offence relates directly to your blood alcohol level. How you drove does not factor into this. It is solely a test of measure. Nothing else.

I cannot say whether they will go for the drunk driving charges. The breathalyzer tests has been found to be inaccurate and unreliable, so at the moment it is just used for the authorities to give probable cause to effect an arrest and get the blood tests done.

I cannot say for certain that they will not try and prosecute, but my experience is that, (unless you clearly drove drunk and missed stop signs and spoke with blurred speach and they have enough witnessess to prosecute on the drunk driving charges), when the blood tests are out, the case is almost always thrown out.

If a summons to appear in court does come, or if she already appeared and the matter is postponed, maybe just get an attorney to make written representations indicating that the blood tests was not done within the two hour limit and I think that will be the last nail in the coffin, so to speak.

Obviously, if you only sat in the parking area and the car was not switched on and the police did not follow you there, it may very well be that the arrest was illegal to begin with, since then she did not actually drive. She merely sat behind a steering wheel.

They need to prove then that she had the intention to drive.

I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.
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