Drunk Driving – let us avoid the excuses and face the Facts!

On the Arrive Alive website we have given much attention to the dangers of Drunk Driving, the need to know your limit and the warnings to stay within this limit! We often find that drivers are less than happy when stopped for drunk driving and even sometimes express their anger at the traffic officials instead of admitting to guilt on their part. We would like to share such an email as well as the detailed and accurate response from Justice Project South Africa!

As a wise man once said – “Look after the facts and the law will look after itself..”

Question:

“Drinking & driving is not taken seriously by some members of the public, I too have had my fair share of parties out @ clubs with my rugby mates drinking like a fish and then driving home. With age I started to go to clubs less often and drank less while I was with my mates, I moved up to Jhb and joined a club and after practice on thursdays they liked to have a few drinks and bond with fellow players and for weeks I had always told them not tonight guys, maybe next week! 7 months ago I took up the offer to stay for a few and chat with the guys and before we knew it, it was time to close the club house for the night. So we went to a bar around the corner for 1 more drink! My mates bought me a drink and during that time I had half the drink that they had bought me as I felt ill, so I left.

The only things that I can remember from that night was as I was leaving I waved to my mates to say I was going and walked out the door and towards my van, my van was parked on the opposite side of the street on the next block! I do not remember crossing any street and getting into my van and driving, I was woken up by SAPS officers dragging me out of my van and while I was drifting in and out of consciousness I was handcuffed and put in the van, then someone drawing blood and then put in a cell. I woke up and realized that I was not at home, the cops did not allow my mom to see me but let the tow truck driver into the cell’s so he could get me to sign to tow my van away? Don’t think that was legal at all. A SAPS officer then came and told everybody to freshen up and then they were collected and taken to court except for me, I was told to remain in the cell???

Hours later I was taken to a room where I was asked questions by a detective (criminal case) and finger printed and photographed and then put back in the cell, I was later released on bail at around 2pm by my father. I later asked my girlfriend to take me to the hospital to get checked out as I had server chest pains and they too ran blood work for every know drug under the sun and they said there is no trace of anything in my blood work. 2 weeks later i was contacted by a detective who asked me to come and see him which I did and he told me that the prosecutor had thrown my case out of court due to lack of evidence in the case, the case would be filed in case the other party wanted to press charges. 2 months ago I learn’t that my case had been reopened then closed then reopened then closed again then filed away. So my question to you is this, do I go around for the rest of my life calling myself a drunk driver or as a victim who should have had medical attention before being hurled into a cell so the cops could make their arrest quota?”

Response:

I have read through your story several times to try to come to terms with it and what you are trying to say.

I think that the best place to start is to tabulate the relevant points and then take it from there.

• On the evening in question, you stayed behind after a sports club meeting to have “a few” (this is a relative term) alcoholic beverages of some kind.
• You then went to a bar to have some more to drink and consumed half an unstipulated alcoholic beverage and left.
• You then went back to your vehicle but do not remember crossing the road to get to it, nor do you have any recollection of the events that led to your arrest.
• You recall being “dragged” out of your vehicle by SAPS officers whilst you were “drifting in and out of consciousness”, being handcuffed and put in their van and “someone” drawing blood. You also recall being placed in a police cell. You then say you woke up at some stage and realised that you were not at home.
• You say that your mother was not allowed to see you but the driver from a towing company was allowed to come through to you to have a towing instruction signed.
• Others in the cell with you were taken to appear in court but you were left behind and later you were questioned by a police officer and your fingerprints were taken.
• You were then released on bail and went to hospital to have yourself checked out and a series of blood tests conducted to check for the presence of drugs but these did not show anything to be present.
• You then describe a series of events involving your case being allegedly shoved from pillar to post.
• And then comes your question: “do I go around for the rest of my life calling myself a drunk driver or as a victim who should have had medical attention before being hurled into a cell so the cops could make their arrest quota?”

I am going to start by answering your question which appears at the end of your story first and then I will deal with the other matters.

Unfortunately, you seem to view yourself as a victim of some kind of conspiracy against you, rather than as being a person who was clearly driving a motor vehicle under the influence of an intoxicating substance which is not only a criminal offence, but is one of the most dangerous things any person can do with a motor vehicle. The dilemma I face is that to a certain degree, your argument of being mistreated holds water; but not for the reasons that you may think.

From what you have described, it would appear that not only were you in fact under the influence of alcohol, and possibly drugs as well, but you were also operating a motor vehicle at the time that you were arrested. It is very clear that you were substantially intoxicated since you describe drifting into and out of consciousness, which is a symptom of alcoholic stupor. It is also clear that a blood sample was taken from you by a district surgeon or other medical personnel and that you were detained and then charged once you had sobered up.

There is nothing inherently wrong with the Police waiting for a person to sober up before proceeding with fingerprinting and an interview in which that person is not compelled to say anything and in fact, had they have done so prior to you sobering up, they would have contravened standard operating procedures. You seem to be suggesting that you were denied medical attention by the Police, but you make no mention of asking to see a medical practitioner. The fact that you visited a hospital immediately after your release and had a barrage of blood tests conducted “for every know drug under the sun”, which all came back negative does not in any way strengthen your case, but in fact weakens it considerably as it shows that your suspicion of being drugged was unfounded. That is of course if the correct tests were conducted.

You also mentioned something about “the other person”, which seems to suggest that your actions affected someone else; but you have not made clear whether you were involved in a crash or not. This concerns me since there may have been injury to another person and/or damage to property caused by you. Incidentally, it is not up to any “other party” as to whether to bring charges for driving under the influence of alcohol or not, as this is a State function where a crime under the National Road Traffic Act has been committed.

From the perspective of wrongdoing; whether or not you regard yourself as a “drunk driver” is totally irrelevant. Criminals rarely see themselves as being the one who is in the wrong. To the contrary – most prisons around the world are filled with “innocent” people who feel they don’t deserve to be there. What is relevant however is whether or not you were in fact driving under the influence of alcohol or drugs having a narcotic effect.

It is clear that, by your own admission you were in fact driving under the influence of one or more intoxicating substances and whether you like to admit it or not, this is a very serious crime. One also has to ask what kind of friends you have, that would apparently goad you into drinking and then allow you to climb in your vehicle and drive, when they should have been able to see that you are not capable of doing so. Real friends don’t allow their friends to drive drunk and would have arranged to take you for medical attention if you fell ill. But this would require that your friends were themselves in possession of their faculties, which is a rarity where people are intoxicated themselves.

Your suggestion that you fell victim to Police trying to meet their “arrest quotas” is simply outrageous and, quite frankly shows that you have absolutely no concept or grasp of the gravity of what happened here.

That having been said, it is what happened afterwards that presents the moral dilemma that I have to address in this reply.

I am of the view that the way in which cases of driving under the influence (as well as a host of other criminal offences) is dealt with in this country is grossly flawed and it is this view and the solutions thereto I have proposed which have earned me a lot of enemies in law enforcement circles. You see, both criminals and law enforcers despise hearing the truth, but I don’t see this as a valid reason why these truths should not be spoken, so here goes.

If you have ever watched “Law and Order” on television you will have heard that its intro makes a very important statement which should ring true in any criminal justice system. Adapted for South African circumstances, this would go: “In the Criminal Justice System the people are represented by two separate, yet equally important groups. The Police who investigate crime and the National Prosecuting Authority which prosecutes the offenders. These are their stories.” As much as this should apply in South Africa, our dysfunctional system has warped this into a form of hybrid which is not at all healthy for our criminal justice system.

For some bizarre reason, arrest has come to be regarded by law enforcers as a way in which to punish people for the crimes that they are alleged to have committed prior to them being found guilty by a court. They have completely lost their way in understanding what their mandate is and the reason that this has happened is not at all difficult to understand, however I hasten to add that understanding it and condoning it are not one in the same. From a purely drink driving perspective, of the 12,516 people arrested for driving under the influence of alcohol from December 2010 to May 2011, I have only heard of some 300 people being convicted for the offence up to July 2011. This represents a conviction rate of around 2%, which in my opinion is absolutely ridiculous.

With that kind of perceived successful prosecution rate, it is not difficult to see why the attitude of law enforcers has become one of acting as punishers, rather than acting as those who bring wrongdoers to the courts so that justice may be seen to be done, since they don’t see the results of their work coming out of the courts. I guess you could say that our law enforcement authorities have turned to a form of vigilantism themselves and this is a very, very dangerous thing in any society. It is also the sign of a Police State coming into existence and this is something that every South African should be extremely wary of.

Let me explain why I say these things, since your case clearly depicts how these things have happened.

Firstly, you need to understand that the prosecution of your case is far from over can be re-instituted at any time in the future. The reason that most drunk driving cases are provisionally withdrawn in South Africa is that our Constitution demands that people accused of a crime are afforded a trial without unreasonable delay. The NPA have taken to provisionally withdrawing these matters in order to avoid violating the Constitution, simply because the State Laboratories are thoroughly deficient in providing blood test results within the timeframes their commercial counterparts manage to provide them. A commercial laboratory can provide results within 24 hours and I have put this to the test. State laboratories invariably take several months and even years to do so.

It is my belief – and no-one has come up with a valid reason why this cannot be done – that blood tests for drink driving should be outsourced to commercial forensic laboratories and that the offender could easily be ordered to pay the R146 for this test if it comes back positive. In fact, even the truly innocent would probably be more than willing to pay for these tests, given the option, since vindicating themselves has a number of advantages – not least of which is providing the ability for them to seek compensation from law enforcers who like to regard people as being guilty until they prove themselves to be innocent.

If one thinks about it logically, provisional withdrawal can be no less a violation of the Constitution than simply postponing cases over and over again due to inefficiencies, but it is going to take a Constitutional Court challenge to set this matter straight, once and for all and that is going to take money. In your story however, you have made no mention of appearing in court – ever and if you haven’t then someone is going to be in for the high jump and that someone is not going to be you.

Then there’s the treatment that you were allegedly subjected to by the Police and once again, I speak from experience when I say that the many members of the SA Police Service grossly violate provisions of the Constitution with impunity and against almost every person that they arrest and hold in their cells. In terms of the Constitution, they may not deny people access to medical attention, visits by family members and a host of other things, but they often do just that. They are also obliged to treat people with dignity and even this seems to be asking way too much of them. They regularly violate the Constitution as well as basic fundamental principles of decorum and humanity by treating those who are accused of a crime, family members and even legal representatives with utter contempt.

It is also not at all uncommon for Police to stretch the detention of accused persons to the maximum by wilfully delaying and procrastinating in the execution of their duties of charging and where allowable, releasing persons accused of a crime on bail. By law, they are required to bring a person before a court as soon as possible, but no later than 48 hours after their arrest. Obviously this gets affected by Public Holidays and the like, so sometimes it is impossible to meet the 48 hour rule.

To compound these issues, shyster attorneys are regularly allowed to tout for business inside police stations and to prowl the corridors of the courts. Some Police even hand out business cards for these shyster attorneys. This is completely contrary to every single rule in the book, as well as the rules of the Law Society, but it happens – often.

My advice to you therefore is to get a decent and experienced, competent attorney to represent you and bring this matter to finality since you would not have been asking your question if you had one. Not only is it your right to be afforded a fair trial which begins and concludes without unreasonable delay and to be represented by a legal representative of your choice, but it is the right of the people of South Africa to have people who drive after consuming alcohol removed from our roads as quickly as is humanly possible. Please remember always that as much as you have rights, so do all other people but coupled to our rights, we have responsibilities and we should never, ever forget that.

Best Regards,

Howard Dembovsky
National Chairman – Justice Project South Africa (NPC)
Association Not For Gain | Incorporated as a non-profit company under the Companies Act, 2008 | Registration Number 2010/019972/08

Additional Feedback received

“I never once said in my story that I was right in what I did! on the night in question, was the 1st social meeting with all the teams and coaches. I had always turned them down as I too have a family. The “few” drinks I consumed at the club were about 4 beers and half a glass of vodka & redbull. The reason why I only consumed half of my last drink was because I started to feel ill and I had never felt like this before so I thought it best I leave to go lie down.

As for what you said about my friends (friend’s don’t let drunk friend’s drive) was as I left I walked past them and waved thinking that they saw me walk out the door, which I later found out that they were looking for me when they were going home. I never drove through a roadblock or was stopped by the cops because I was driving recklessly, the cops were only there because the house I was parked outside of had called to say that were scared and didn’t know what to do.

I really don’t know how things went down, but after the cops showed up I drove through their gate, hit the owners car and smashed into his house. That’s when I was arrested and my mother and the owner of the house were in communication with each other and he said that when he 1st saw me he thought I was drunk and once I was taken out of my van he came to look at me and said that that’s not drunk, there is something else wrong with me as he too played rugby in his younger days and that he had to ask the cops to stop kicking me and the fact that he did not press further charges against me, the state prosecutor had thrown my case out of court due to the fact he said that there was not enough evidence in my blood work to charge me further. The detective told me that. The case would be filed incase any further action needed to be taken! I went back to the station to see how things were going and I was told the my case was opened then closed then reopened and then closed again for the last time. So think about what you would do if this was one of your kids going through this and then tell me that I got behind the wheel knowing I was drunk?”

Also view:

The consequences of drunk driving and unlicensed driving explained

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