Are you over the limit? South African law and blood alcohol content

May 1st, 2021
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Picture source: Gallo Images/Getty

Globally South Africa (SA) is rated as the sixth highest per capita consumer of alcohol. The Road Traffic Management Corporation (RTMC) State of Road Safety Report: Calendar January – December 2018 (RTMC Safety Report) shows that the road fatalities for 2018 were 12 921 (www.rtmc.co.za, accessed 21-4-2021). Of these, fatalities between 38% and 60% were pedestrians and 51% of road fatalities (58% according to the World Health Organisation (WHO)) involve alcohol where the blood alcohol content (BAC) exceeds the current legal limit of 0,05% (0,02% for professional drivers). According to the RTMC alcohol-related vehicle crashes cost our country R 18,2 billion per annum. The government’s response to this problem is to reduce the BAC limit to 0%.

International BAC limits

A 0% legal BAC limit applies in very few Western democracies and, if applied, is largely restricted to new or inexperienced drivers. Most Western countries apply a 0,05% BAC limit (https://en.wikipedia.org, accessed 8-4-2021).

Relevance of BAC

The BAC level is an indicator of the effect of alcohol intake on a person’s behaviour and driving ability and is used for medical and legal purposes.

BAC level Behaviour Impairment
0,001 – 0,029 Appears to be normal Only determinable with special tests
0,030 – 0,059

Decreased social inhibition

Joyousness

Mild euphoria

Relaxation

Increased verbosity

Decreased powers of concentration
0,060 – 0,099

Alcohol flush reaction

Reduced affect display

Disinhibition

Euphoria

Extraversion

Increased pain tolerance

Depth perception

Glare recovery

Peripheral vision

Reasoning

 

According to Wikipedia (op cit), the table on p 28 shows that reducing the BAC from 0,05% to 0% will have little or no significant effect on the prevention of crashes due to alcohol-induced impaired ability.

Actual problem – effectiveness of BAC limit reduction

According to H Haghpanahan, J Lewsey, D Mackay, E McIntosh, J Pell and A Jones (‘An evaluation of the effects of lowering blood alcohol concentration limits for drivers on the rates of road traffic accidents and alcohol consumption: A natural experiment’ (2019) 393 Lancet 321 (www.thelancet.com, accessed 8-4-2021)) research shows that lowering the BAC limit does not have a direct effect on road crash fatality numbers or alcohol consumption behaviour. A 2014 Scottish study (‘Impact of legislation to reduce the drink-drive limit on road traffic accidents and alcohol consumption in Scotland: a natural experiment study’) tracked the results of a reduction of BAC from 0,08% to 0,05%. After this reduction in BAC limit for drivers (compared to Road Traffic Accidents (RTA) in England and Wales, where no reduction in BAC limit for drivers occurred) there was a 7% increase in weekly Scottish RTA rates. Similar findings were observed for serious or fatal RTAs and single-vehicle night-time RTAs. The change in legislation in Scotland was associated with no change in alcohol consumption, measured by per-capita off-trade sales, but a 0,7% decrease in alcohol consumption measured by per-capita on-trade sales. In 1996 the BAC in SA was reduced from 0,08% to 0,05%. In that year, road deaths were 9 848 (G Setswe ‘Impact of drunken driving on motor vehicle accidents and the “Arrive Alive” campaign in South Africa’ (2005) 16(5) Epidemiology at 13). The RTMC Safety Report reported the road crash death rate in 2018 was 12 921.

Drunk pedestrians and drugged driving

Reduction of the BAC to 0% applies only to drivers and ignores that 38% – 60% of road fatalities are pedestrians. In December 2017, 60% of pedestrians killed on Western Cape roads consumed one or more alcoholic drinks (Jason Felix ‘Drunk pedestrians are a danger to road-users’ (www.iol.co.za, accessed 8-4-2021)). According to Western Cape experience, 72% of pedestrian fatalities had BAC over the limit. Blood-alcohol tests on injured pedestrians showed 58% were 0,02 mg and higher, 14% were between 0,08 mg and 0,19 mg and 3% had some alcohol but less than 0,08 mg. The remaining 25% were alcohol-free. A study at Groote Schuur Hospital found that half of injured pedestrians were chronic alcoholics and 70% had signs of dagga in their urine (Taslima Viljoen ‘Lawmakers target drinking and walking’ (www.iol.co.za, accessed 8-4-2021)). A multicentric sampling of pedestrians in SA found that 16% of pedestrians were at BAC levels of 0,08% and accounted for 72% of adult pedestrian deaths (Setswe (op cit) at 9).

Jade Liebenberg, Lorraine du Toit-Prinsloo, Gert Saayman and Vanessa Steenkamp (‘Drugged driving in South Africa: An urgent need for review and reform’ (2019) 67 South African Crime Quarterly 7) show that substance intoxication is being ignored. Driving under the influence of drugs (DUID) is regulated by s 65 of the National Road Traffic Act 93 of 1996 (NRTA), which prohibits driving under the influence of a drug with a narcotic effect. There are several prescription medications, which impair driving ability but do not have a narcotic effect. They call for the amendment of s 65 of the NRTA to include DUID (Viljoen (op cit)). Examples of such drugs are amphetamines (eg dexamphetamine or selegiline), clonazepam, diazepam, flunitrazepam, lorazepam, methadone, morphine or opiate and opioid-based drugs (eg codeine, tramadol, or fentanyl), oxazepam and temazepam. In the United Kingdom it is an offence to drive while using these medicines if their use impairs driving ability (see ‘Drugs and driving: The law’ (www.gov.uk, accessed 8-4-2021)). A study has shown that drug use accounts for 13% of road deaths in SA (Setswe (op cit) at 9).

Why does the reduction of BAC in isolation not improve road crash outcomes?

A plausible explanation is that legislative change is not suitably enforced – for example with random breath testing measures (Haghpanahan, et al (op cit)). This phenomenon has significant policy implications when reducing the BAC limit. Rowan Dunne (Levels of alcohol intoxication: An assessment of Perceptions, Knowledge, Attitudes, Practices and Breath Alcohol Levels (MSSc thesis, UCT, 2012) (https://open.uct.ac.za, accessed 6-4-2021) found that in his sample group of 180 drivers licence holders, 76 (42,2 %) of those surveyed had previously been through a roadblock after drinking, while 61 (33,9%) indicated they had been stopped by a law enforcement officer after drinking. Despite these encounters, only 12 (6,7%) were arrested for drinking and driving. He suggests that to increase the perceived risk of arrest for drinking and driving, the number of roadblocks and arrests should be increased (see also in this regard Amanda Delaney, Kathy Diamantopoulou and Max Cameron ‘Strategic Principles of Drink-Driving Enforcement’ (www.monash.edu, accessed 8-4-2021)). This conclusion is supported by Australian experience.

In Victoria State in the five years before 1987, more than 110 drivers and motorcycle riders who lost their lives each year had a BAC greater than 0,05%. This was reduced in 2011 to 2015 to an average of 28 drivers and riders with a BAC greater than 0,05% losing their lives each year. In 2016, there were 34 drivers and riders who lost their lives with a BAC greater than 0,05%. This 32% reduction in fatalities was the result of a concerted BAC enforcement action. Since 1997, Victoria Police have breath tested more than 24 million drivers and riders from Booze Bus operations, apprehending more than 75 000 drivers and riders with an illegal BAC during this period. Currently the vast majority (99,7%) of drivers tested do not exceed their legal blood alcohol levels. To place the Victorian BAC testing into perspective: Victoria has 4,3 million licenced drivers (‘Drivers Licences in Australia’ (www.bitre.gov.au, 20-4-2021)).

In the quest against intoxicated driving, Australia, and New Zealand and lately Kerala in India employ mobile DUI and DUID enforcement units, which are colloquially referred to as ‘Booze Buses’ in Australia and New Zealand in their regular random roadblocks. These vehicles are mid-sized buses equipped with blood alcohol and drug testing equipment where the blood of suspected drunk drivers is drawn and tested in situ. It incorporates two interview rooms (for a schematic of the design see F Cotter ‘Do the right thing! VicPol ADT BBW-Iveco “Booze Bus”’ (www.busnews.com.au, accessed 8-4-2021)). In addition to Booze Buses and regular roadblocks, Victoria has introduced mandatory fitting of alcohol interlock ignition devices for six months at the driver’s expense (AU$ 1 605) in cases where a driver whose licence has been cancelled blows above 0,07%. The lock requires a driver to breathe into the interlock and the car will not start if a blood alcohol limit of 0,02 is reached. It uses technology ensuring that the correct person breathes into the device and preventing bypassing. The lock is only removed after five months if a driver did not violate the conditions of the interlock and attempted to drink and drive. Australia is mooting the interlock as a standard feature of all new vehicles in Australia (see ‘Alcohol interlock devices mandatory in Victoria for drink-drivers who have licences cancelled’ (www.abc.net.au, accessed 8-4-2021)).

South African DUI enforcement

South Africa has 12 million registered vehicles (J van der Post ‘You’ll never guess how many vehicles are registered in SA’ (www.news24.com, accessed 8-4-2021)). Based on the Dunne study, only 6,7% of drivers who consume alcohol before driving are arrested for DUI and less than 50% are detected by roadblocks. A considerable number of intoxicated drivers remain undetected. The reported figure for DUI arrests for 2019 was 82 912.

It was reported in 2015 that for a variety of reasons 44 526 DUI cases were withdrawn from South African courts in the 2012/2013 financial year (Wilmot James ‘The state of forensic chemistry laboratories in SA’ (www.politicsweb.co.za, accessed 8-4-2021)). A substantial number of these withdrawals were because of inadequacies in the maintenance and operation of technical equipment (including breathalyser apparatus), inadequate or inappropriate sample retention and storage, as well as invalid sample analysis (see Ursula Ehmke-Engelbrecht, Lorraine du Toit-Prinsloo, Christelle Deysel, Joyce Jordaan and Gert Saayman ‘Combating drunken driving: Questioning the validity of blood alcohol concentration analysis’ (2016) 54 South African Crime Quarterly 7).

According to South Africans Against Drunk Driving, the DUI conviction rate is 7% (https://sadd.org.za, accessed 8-4-2021). Official DUI conviction statistics could not be accessed. The statistics in the National Prosecuting Authority Annual Report 2019/2020 and the Department of Justice and Constitutional Development Annual Report 2018/2019 do not deal with individual crimes. Generally, only certain crimes’ conviction rates are reported and used (see T Leggett ‘The Sieve Effect – South Africa’s conviction rates in perspective’ (2003) 5 South African Crime Quarterly 11 (www.researchgate.net, accessed 8-4-2021)). The low conviction DUI rate is partially attributable to obstacles in using BAC detection equipment in BAC/DUI prosecutions, which would include the recently introduced Evidentiary Breath Alcohol Testing devices (see Ehmke-Engelbrecht et al  (op cit) and S v Hendricks [2011] 4 All SA 402 (WCC); Price v Mutual & Federal Insurance Co Ltd 2007 (1) SACR 501 (SE); L Fouché, J Bezuidenhout, C Liebenberg and AO Adefuye ‘Medico-legal aspects regarding drunk driving: Experience and competency in practice of community service doctors and proving DUI cases’ (2018) 60(2) South African Family Practice 63). In a 2014 News24 report, an anonymous police officer alleged an estimated 80% to 90% of DUI prosecutions fail because of botched blood samples or straightforward corruption and prosecutors withdrawing charges. Other contributing factors are that DUI convictions are not a priority with either police officers or prosecutors (‘Anger over drunk driving conviction rate’ (www.news24.com, accessed 8-4-2021) and Stephan Hofstatter and Pearlie Joubert ‘Drunk-drive botch-up’ (www.timeslive.co.za, accessed 8-4-2021)). The WHO rates South African BAC enforcement at 25% (G Crouth ‘Consumer Watch: Zero-tolerance drunk driving law a “smokescreen”’ (www.iol.co.za, accessed 8-4-2021)).

Harassment and prosecution of the innocent

The Dunne study shows that 72,9% of the population are either lifetime or current teetotallers. With 0% BAC a substantial section of the driving population is at risk of being unjustifiably harassed and even prosecuted. The following may give false positive BAC results: Consuming certain medications such as for asthma (albuterol, salmeterol, budesonide, and similar medications), over-the-counter medications (Vicks and other cold medications), oral gels used to treat pain from canker sores and toothaches and some mouthwashes and breath fresheners. Medical conditions, such as acid reflux and diabetes, recent dental work and very rarely auto brewery syndrome. Ingestion of certain foodstuffs –

  • ripe fruit (pulp of ripe fruits contains ethanol at concentrations of up to 0,9%);
  • protein bars (these bars are filled with odourless syrupy substances that increase BAC);
  • alcohol containing hot sauces;
  • sugar-free gums (containing sugar alcohols replacement to provide sweetness);
  • white breads (sourdough and white breads contain a certain amount of alcohol); and
  • vanilla extract (see www.quora.com, accessed 8-4-2021).

Conclusion

Road crash fatalities cannot simply be reduced by introducing 0% BAC. The reduction of our BAC from 0,08% to 0,05% for drivers in 1996 had and the current initiative will have no effect unless there is legislation dealing with the entire spectrum of intoxication control of all road users and consistent, effective, and proper law enforcement including identification, revision, and removal of all obstacles to effective law enforcement and BAC, and DUI convictions. Behaviour of alcohol and drug consuming road users will not change if there is no real threat of certainty of detection, successful prosecution, and conviction. Etienne Blais and Benoit Dupont note ‘[f]or example, Homel [(R Homel Policing and punishing the drinking driver (Springer-Verlag New York Inc 1988); ‘Drink-driving law enforcement and the legal blood alcohol limit in New South Wales’ (1994) 26 Accident Analysis & Prevention 147)] assessed the effect of the New South Wales random breath testing initiative (RBT) on the annual volume of fatal road accidents. In Australia, the law allows police officers to block roads and test the blood alcohol concentration [BAC] of every driver, independently of the doubt that they have regarding their level of intoxication. Australian police organisations are equipped with mobile laboratories to test as many drivers as possible. The introduction of RBT, combined with stigmatising media campaigns, has been followed by an abrupt reduction in fatal accidents. The RBT implementation was characterised by a significant increase of BAC testing. This adjustment in the level of police repressiveness positively influenced the likelihood of being detected for [driving while intoxicated]. Even if an increase in the probability of being arrested is needed to start the deterrence process, the improvement of the road-accident rate does not stem directly from the punishment of those who drink and drive: The principal opportunity for criminal law to be effective in reducing drunk driving is paradoxally (sic), not by affecting the apprehended law violators, who stand within its power. Rather, it lies in affecting unapprehended individuals who are sensitive to the threat that, should they behave illegally, they will be punished [(HL Ross Confronting Drunk Driving: Social Policy for Saving Lives (New Haven, CT: Yale University Press 1992)]’ (E Blais and B Dupont ‘Assessing the Capability of Intensive Police Programmes to Prevent Severe Road Accidents: A Systematic Review’ (2005) 45 The British Journal of Criminology 914).

The proposed change in BAC level for drivers ignores the question of drunken pedestrians who make up a significant proportion of alcohol-related road deaths. Driving under the influence of drugs is also excluded. These questions deserve the legislator’s attention. A 0% BAC limit unnecessarily exposes a large proportion of law-abiding drivers to the possibility of unwarranted harassment and prosecution. Regular and consistent random roadblocks with Booze Buses (as done in Australia and New Zealand) and inevitable conviction in conjunction with alcohol interlocks seems to be the key to solving the DUI and DUID problem and changing drivers’ attitude to drinking and taking drugs (if and when regulated) when driving a motor vehicle.

Prof Hennie Klopper BA LLD (UFS) is an Emeritus Professor at the University of Pretoria and legal practitioner at HB Klopper in Pretoria.     

This article was first published in De Rebus in 2021 (May) DR 27.

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