Abstract:
South African legislation makes it an offence for a person to drive a vehicle on
a public road while the concentration of alcohol in any specimen of blood or
breath is in excess of the prescribed minimum. If it is proved that a sample taken
within two hours of the alleged contravention is in excess of the prescribed
minimum, it shall be presumed that the concentration of alcohol was above the
prescribed minimum at the time of the alleged offence. The purpose of this study
was to examine whether the two-hour evidentiary presumption in the context
of drinking and driving cases is sufficiently a compelling factor to override
suspects' right to counsel under the South African law? This study also
investigated whether the suspect is entitled to counsel during the two-hour period
and if so, whether the suspects' right to counsel has been violated or whether
evidence of the sample should be excluded. Under South African law the suspect
is not afforded the opportunity to confer with or to be assisted by counsel when
the sample is taken in this crucial timeline. In conclusion, safeguards must be
built into the system to help protect the due process rights of a person suspected
of drinking and driving under South African law was recommended among others.
