Evidentiary presumption of drinking and driving cases and the suspects' right to counsel under South African law

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.