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July 12, 2012

Arrest For Drunk Driving – When Is It Legal?

Anyone failing a breathalyser or blood test at a roadblock can expect to be arrested on a charge of driving under the influence of alcohol – and you can’t refuse to be tested.But, per a recent Supreme Court of Appeal decision, in the absence of such a test the police cannot lawfully arrest a motorist if the arresting officer’s suspicion is based on nothing more than “the mere fact that he smelt lightly of alcohol”.

The arrest and the detention

  • An off-duty police officer was arrested by his colleagues on suspicion of driving under the influence of intoxicating liquor.  He had flagged the other officers down to ask for assistance after his vehicle veered off the road and fell into a ditch on a dangerous section of road at night.
  • He was detained in police cells for four and a half hours in “inhumane and horrid” conditions before a blood test confirmed that he was in fact below the legal limit.  The charge was accordingly withdrawn.

Arrest without warrant – what’s required?

The Court held that where an arrest is carried out without a warrant, the arresting officer must prove the lawfulness of the arrest, specifically: –

  1. The arresting officer must be a “peace officer”.  The term includes SAPS members, magistrates, justices, correctional officials, and other officials appointed as such for specific purposes or areas (such as municipal police officials, inspectors appointed by the National Consumer Commission, etc);
  2. The arresting officer must entertain a “suspicion”;
  3. The suspicion must be that the suspect committed any of a specified range of “serious” offences; and
  4. The suspicion must be based on reasonable grounds – the legal test being “whether any reasonable person, confronted with the same set of facts, would form a suspicion that a person has committed a [specified] offence”.

The damages award

The Court here decided that the arresting officer’s suspicion – being founded only on the fact that the arrestee smelt of alcohol and that his vehicle had left the road and landed in a ditch – was not based on reasonable grounds. There was no evidence that he was unsteady on his feet, that his speech was slurred, that he could not walk in a straight line or that his eyes were bloodshot – all, as the Court put it, “well-known indications of a person who is under the influence of alcohol”.  The Court accordingly confirmed a damages award to the arrestee of R50,000 for unlawful arrest and detention.

Note:  In another similar case recently before the High Court, a tee totalling pastor was awarded R70,000 damages after being arrested, detained in a police cell for 5 hours, and kept in suspense for 6 months before a blood test proved that he had consumed no alcohol.

© DotNews, 2005-2012. This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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