Dealing with drunk driving with spin

The criminal justice administration in SA is somewhat hamstrung by the dysfunctional state of the forensic laboratories operated by the government. This seriously inefficient and ineffective situation is attributable to a multitude of causes, among them affirmative action and an inability to retain staff who do show some promise.

The bungling of commissars of the national democratic revolution and the absence of any professional work ethic among illegally deployed cadres in police and forensics management does not assist.

It has become fashionable to "work around" the situation rather than actually address the problem. When it comes to the criminal prosecution of those who are suspected by the police of driving while under the influence of alcohol, there are three choices available to prosecutors.

The first is the traditional drunken driving case in which the observations of the arresting officer at the scene are used as a basis for inferring drunkenness. This is not assured of a favourable outcome, takes time and is not the most scientific approach.

The second is the "gold standard" method: take a blood sample at the time of arrest or within two hours and rely on the results of the test for success in the prosecution if the blood alcohol exceeds the prescribed limit.

The third way of trying to bring those who drink and drive to book is to measure the alcohol on the breath of suspects with a breathalyser machine and use the results of this test as the basis for prosecution. This third method is the "work around" solution to the problems in the forensic laboratories as they are not involved in the process, a simple one involving the controlled blowing of breath into the machine used, called a Drager machine in SA, after its German manufacturer, which automatically produces a read out of the quantity of alcohol on the breath of the suspected drunken driver who blows into it.

There are a number of difficulties with using the Drager to provide proof of the intoxication of the suspect. Some of these difficulties came under scrutiny in the Cape High Court in a recent test case in which Clifford Hendricks, a driver whom the state alleged had four times the legal limit of breath alcohol, was acquitted because the court found that the Drager machine used to prosecute him was incapable of providing evidence sufficiently reliable to provide proof beyond a reasonable doubt.

The blood of Hendricks had not been tested and accordingly, the gold standard of a blood alcohol test was not available. As it was a test case, the observations of the arresting officers were irrelevant. In effect, the efficiency of the Drager machine was on trial and it was found wanting in a number of respects.

Part of the uncontested evidence before the court, material which the authorities here would do well to consider carefully, was that in Germany, the home of the Drager machine, it is used as a screening device in serious cases of suspected drunken driving and as a means of administratively fining those caught with moderate amounts of breath alcohol who have not offended in any other way.

If the system in SA were adjusted to impose the option of stiff fines on those caught in roadblocks with a moderate Drager reading and in which those who fail the breathalyser test miserably are mandatorily sent for blood tests along with those who crash or drive recklessly when they are suspected of driving drunk, then a sensible balance between the use of blood testing and the use of the Drager could be struck. Those drivers unwilling to accept an admission of guilt fine must be sent for blood testing.

Unfortunately, this is not the approach being foreshadowed by the politicians tasked with fighting the scourge of death on our roads. They persist in imagining that a silk purse can be made of the Drager sow's ear. They do so at their peril. The practice of politics can take place in the world of perceptions; the prosecution of crime has to take place in the world of law and science, both of which demand that credible and objectively determinable standards be observed.

Western Cape Transport MEC, Robin Carlisle, on whose watch the Drager went down, has made public a letter written by the National Minister of Transport, Sbu Ndebele, in which he suggests that a little tweaking of the Drager is all that is needed to enable the state to continue to prosecute drivers who drink on the basis of the results of the breath alcohol tests to be carried out with a modified Drager machine.

The intention is clearly to steer away from the well established "gold standard" of blood testing so that the state of the forensic laboratories run by the government need not hold up the process of prosecuting those who drink and drive.

Quite remarkably, and without due regard to the separation of powers, the advocate who sat as an assessor with the judge in the Hendricks test case has been consulted by the state to advise on the tweaking of the Drager machine that is required to render it capable of providing proof beyond a reasonable doubt.

There are two insurmountable problems with this endeavour. Firstly, the Drager is incapable of measuring specifically for the type of alcohol found in liquor consumed by drivers. Other types of alcohol, present for reasons unconnected with imbibing the well known content of popular drinks, are indistinguishable to the Drager machine. The blood test is specific to ethyl alcohol the active ingredient in the intoxication process. Secondly, there is a very rudimentary check on the accuracy of the readout given by Drager machines.

The infrared readout is accepted if the electro-chemical checking system is within a range of 41% of the figure supplied by the infrared readout. The latter readout remains the secret of the machine. This is simply not the stuff of which proof beyond a reasonable doubt is made, which is why the German authorities use the Drager as a screening or administrative device and not as a prosecution tool.

In SA all accused persons are entitled to be presumed innocent and they are allowed to have a fair trial, one in which they are at liberty to attack the efficacy of any machine used to attempt to prove them guilty. If there is an official attempt to make the Drager do what it manifestly can not do, there is likely to be a further challenge to its use in the light of the technical evidence which emerged in the Hendricks trial. It has its use as a screening device, no more and no less.

This does not mean that an overhaul of state forensic laboratories is necessary to keep death off the roads. It is perfectly within the power of the authorities to allow privately run forensic laboratories to do the work necessary to take, test and report on blood samples.

As road traffic regulation is a functional area of concurrent national and provincial legislative competence under schedule 4 of the Constitution, it does not behove MEC Carlisle to wring his hands about the crumbling state forensic laboratories on the basis that there is nothing he can do about them. It is within the power of the province to work around this dysfunction by privatising the testing of blood taken from suspects in the type of turnaround times that will ensure a speedy and fair trial, in which the gold standard of blood alcohol levels is applied without undue delay.

In this way, especially if the zero tolerance of alcohol point is reached as a matter of policy, the bold target Carlisle has set himself for the reduction of deaths on the roads for which he is responsible in the Western Cape can be attained. To rely upon a tweaked Drager machine instead is simply an invitation to more litigation. All road traffic authorities are obliged to respect, protect, promote and fulfil the rights of all to a fair trial. Tweaking the Drager is not the way to do so.

Paul Hoffman SC Ifaisa (www.ifaisa.org). This article first appeared in Business Day.

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