WESTERN CAPE HIGH COURT JUDGEMENT ON THE UNRELIABILITY OF DRAGER DEVICE AND BREATH ALCOHOL TESTING

On 9 September 2011 the Western Cape High Court delivered judgment in the first concerted challenge to evidential blood alcohol testing in South Africa in the case of State v Clifford Joseph Hendriks. The Court acquitted the accused on a charge of driving with an excessive concentration of alcohol in the breath after the State lead evidence, the accused having being tested using the Drager breathalyser device. The case has far reaching implications for road users, persons standing accused of similar charges and for insurers who wish to base rejections of claims on alcohol use using Drager evidence. The Court examined the reliability of breath alcohol testing in detail. Click HERE to view or download the full judgment.

DRÄGER: HOLD YOUR BREATH FOR THE NEW WEAPON IN THE WAR ON DRUNK DRIVERS



The ability of the State to prove convictions for drunk driving and curb drinking and driving is of particular interest for insurers. It is with interest that we follow the State's shift in the method of testing and prosecution of suspected drunk drivers, from blood alcohol to evidential alcohol breath testing. We look at the use of the frontline tool in this policy shift: The Dräger Alcotest breathalyzer.

Amendments to the Road Traffic Act 1993 of 1996  (hereafter "The Act") and the recent decision of the Pietermaritzburg High Court that Dräger Alcotest Breathalyser (hereafter "Dräger") tests are admissible in evidence in respect of proving charges of driving a vehicle with an excessive concentration of alcohol in the breath is the catalyst for the arrest of over 3 500 drivers using this device over the 2009 Christmas period.

Charges of "driving while the concentration of alcohol in the blood exceeds the statutory limit" in terms of section 65(1) of The Act has become a fertile field for defence attorneys. The State, has a worrying failure rate in obtaining convictions for this offence in recent times. The fundamental problem being that while the number of vehicles and drivers on our roads has exploded the State's resources, such as forensic chemistry laboratories and access to medical officers have not been expanded neither in terms of numbers nor ability. The State laboratories have been overwhelmed in numbers and arguably fallen behind accepted international standards.



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ABOUT US


Established in 2002 Marques Soares Fontes Attorneys ("MSF Attorneys") is a medium sized law firm with broad expertise.

The firm provides expert legal advice to a range of clients, amongst others, the insurance, motor, commercial and security sectors. The firm has a strong desire to remain relevant and innovative in the markets our clients trade in and places a high value in building long lasting and mutually rewarding attorney and client relationships. No client is too big or small. We approach all clients' affairs with the same vigor and attention to detail.

The values which drive our practitioners include honesty, integrity, professionalism and innovation.

MSF Attorneys is one of the few, if not only, attorneys firm in South Africa where clients can fully track the progress of their claim on-line from any standard internet enabled computer and have instant and free access to updates and documents pertaining to their matter. It is also capable of continually updating insured clients and claim handlers via SMS and e-mail notifications through its advanced Claim Management System.

If you have come to this site as an insured person of one of our insurance clients and wish to track your claim you can either login and get instant access to your claim events and documents or visit the "How to Track a Claim" tab for assistance.


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  1. FAQ

  2. Q: I received a letter of demand or summons regarding a collision I was involved in. What should I do?

  4. A: If you are insured for third party cover immediately notify your insurer and provide them with a copy of the document you received together with you policy or claim number. In terms of your contract of insurance your insurance company must control dealings and litigation with all third parties. They will either settle the third parties claim or appoint attorneys to defend the action against you. If you appoint your own attorney or fail to allow your insurer to control the litigation this may be considered a breach of your policy conditions and may jeopardize your cover.

  6. Q: What is SASRIA cover?

  8. A: This is an acronym for the "South African Special Risks Insurance Association". SASRIA, which is government run organisation, provides cover against loss from Riot, Strike and Public Disorder – these Perils are Excepted Perils on all Insurance Policies.

  10. Q: When must I notify the insurer of a claim or a potential claim?

  12. A: As soon as possible. Some insurance contracts stipulate a time period e.g. within 24 hours in the case of high valued motor cars. Non compliance with the Insurance Policy condition relating to Claim Notification may well mean your claim will be rejected by your Insurer. Most short term policies require you to notify insurer of a claim within 30 days of the happening of an event giving rise to a claim. You should consult your policy and/broker for guidance.














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