DRAGER CASE: STATE GIVEN GUIDELINES ON HOW TO APPLY DRAGER BREATHALYZER TEST IN A SOBER-MINDED MANNER
South Africa is one of the highest alcohol consuming countries in the world, as a result it has an alarming number of fatalities, serious injury to individuals and property which are caused by individuals driving whilst under the influence of alcohol on our public roads. A recent judgment of the Western Cape High Court by Judge Nathan Erasmus in the landmark test case relating to reliability of the Drager Alcoltest 7110 MK 111 has provided South Africa's law enforcement authorities with insight into the shortcomings of its operation of the Drager breathalyzer test. Whilst blood sampling is one of the most accurate forms to measure blood alcohol concentration, the correct use of breath alcohol testing is more economically advantageous and is able to provide reliable and instant results which aids in the effective prosecution of 'drunk driving cases'.
On 9 September 2011, Judge Erasmus found that the state had failed to prove beyond a reasonable doubt that the results produced by a specific Drager Alcoltest breathalyzer were conclusive proof that the accused, Clifford Hendricks, was driving a motor vehicle whilst he had consumed alcohol in excess of the allowed alcohol limit. Prior to this decision the Drager Alcoltest breathalyzer had been challenged on various occasions in our courts on the grounds that it provides unreliable evidence. In an effort to clarify the evidentiary reliability of the Drager Alcoltest breathalyzer the State brought the case of Clifford Hendricks as a test case before the High Court.
The accused was apprehended by the police on suspicion of driving a motor vehicle whilst under the influence of a substance which had a narcotic effect. The accused was taken to an alcohol examination centre for a breath test to be conducted using the Drager Alcoltest breathalyzer. The test results reported that the accused had a breath alcohol concentration which was almost four times over the legal limit of 0.24mg per 1000 millilitres. The accused was formally arrested and charged with the offence of contravening section 65(5) of the National Road Traffic Act ("the RTA"). Section 65(5) of the RTA prohibits any person from driving or occupying the driver's seat of a motor vehicle the engine of which is running on a public road whilst having consumed alcohol in excess of the allowed concentration of alcohol in any specimen of breath exhaled by that person.
The accused pleaded not guilty to the charge, he placed in dispute that,inter alia, the Drager Alcoltest breathalyzer used on him was operated correctly, functioned correctly, was operated by an appropriately qualified person, was calibrated correctly, can accurately determine the alcohol concentration and was operated in accordance with the guidelines of the manufacturer. The accused also argued that the legislation regulating breath alcohol testing does not conform to the rule of law and the Constitution of the Republic of South Africa. The accused's arguments on the constitutional law grounds were that firstly, breath alcohol does not establish a scientific correlation between a person's motor or perceptual skills and that person's driving ability. Secondly, the correlation between breath alcohol and blood alcohol differs from individual to individual thus rendering the breathalyzer test as arbitrary and unreasonable.
The Court's Findings
The court dismissed the accused's constitutional law arguments. In doing so, Judge Erasmus examined the scientific aspects of breath alcohol testing in finding that there is correlation between breath alcohol and a person's ability to drive, subject to certain safeguards that must be observed by the law enforcement authorities. Furthermore, the court held that blood and breath alcohol can differ from individual to individual but there are safeguards that can be utilized to overcome any potential prejudice by striking a balance between the scourge which is sought to be eradicated and the rights of each individual driver.
The type of gas that is sought to be measured for purposes of evidential breath testing is ethanol. The court held that in order to accept the results of the Drager Alcoltest breathalyzer it must be proven beyond a reasonable doubt that the test results exclude any other substances which mimic the scientific characteristics of ethanol. It was noted that dentures, excessive tobacco smoke, alcohol in the mouth and alcohol vapours in the air may affect the results of the Drager Alcoltest breathalyzer. In this case the court found that the state had failed to follow procedures that would ensure that only ethanol was measured by the Drager Alcoltest breathalyzer and not external ethanol-like substances.
Section 65(7) of the RTA read together with Regulation 332 provides that equipment which is intended to be used for purposes of section 65(5) of the RTA must be approved in accordance with the South African National Standards 1973. Furthermore, the Drager instruction manual and the prosecution guidelines require that a Drager breathalyzer machine be calibrated every six months. The court found that the state neglected to keep proper records of the maintenance of the particular Drager Alcoltest breathalyzer. The court found that the state had failed to prove that the particular Drager Alcoltest breathalyzer with its current software had ever been tested as prescribed by legislation. The court noted the importance of independent calibration and maintenance by an accredited laboratory where scientific and technical equipment is used in prosecution of a person in any criminal proceedings.
The court also held that the particular operator who had conducted the breathalyzer test, a traffic officer, was insufficiently trained and failed to follow the standard operating procedures prescribed in the operator's manual, the legislative framework and the prosecution guidelines. The extent of the failure impaired the legal validity of the test result. There was no proof placed before the court that the operator had ever been trained to operate the Drager Alcoltest with its current software.
Although this judgment may seem like a defeat against the fight to eradicate and effectively prosecute drinking and driving offences, this defeat should only be a short term defeat as the State has been provided with insight into the shortcomings of its operation of the Drager Alcoltest breathalyzer and indicative guidelines on what will pass constitutional muster and legislation. In other jurisdictions the Drager Alcoltest breathalyzer has been successful used when the correct safeguards are employed by the law enforcement authorities. Law abiding South Africans should also find solace in this judgment as the State can only successfully prosecute individuals using the Drager Alcoltest if the State has followed the correct operating procedures for breath alcohol testing, this will limit prosecution of innocent individuals.