News

Breathalyser tests invalid

March 15, 2010 Edition 1

ALEX ELISEEV and JASON WARNER

THE battle against drunk driving has suffered a massive blow with the suspension of a breathalyser which could see the scuppering of ANC spokesman Jackson Mthembu's case along with thousands of others.

The use of all Dräger machines - used by Metro Police and other authorities across the country - was suspended about two weeks ago to close a legal loophole caused by a certification problem with the machines which may take months to rectify.

The National Prosecuting Authority (NPA) has withdrawn all court cases that had not yet started and had relied on the machines' readings.

In two high-profile cases of alleged drunk driving, four Soweto schoolboys were killed in a street race involving hip hop artist Molemo "Jub Jub" Maarohanye, and Mthembu was arrested and charged.

Traffic spokeswoman Merle Lourens confirmed Mthembu had been tested using a Dr228ger unit, and that blood had not been drawn from him.

On hearing the news, Mthembu told the Cape Times he would consult with his lawyer immediately. He declined to comment further, saying his defence would have to be notified first.

Although the NPA is optimistic that those convicted will not launch legal bids to have their convictions overturned, the potential full impact of the Dräger debacle is unclear.

Metro police officers have been forced to revert to escorting a suspect to a hospital, finding a district surgeon, drawing a blood sample and handing it in at a police station, a procedure significantly more time consuming than the Dräger test, which had stood up in court as evidence. While blood tests can take up to 18 months to be processed at laboratories, Dräger tests allowed cases to be tied up in days.

The Metro Police first bought Dräger machines in late 2008 and rolled out the appliances across the country.

Lourens said she was unaware that Dräger machines had been suspended.

"We've used them since about mid-December last year. They're still used here."

The Western Cape Transport Department in December launched an advanced centre where drunk-driving suspects would be tested instantly and accurately. The centre, called Shadow (Safely Home Anti Drunk-driving Operations War Room), uses the Dräger breathalyser machines.

Suspects nabbed at roadblocks were taken to the centre in Athlone and tested.

According to Lourens, since December 19 last year up until six days ago, 1 084 people had tested positive at the centre for drunk driving. All these tests were carried out using Dräger machines, meaning all 1 084 people could be off the hook.

Dräger has sold around 200 machines in South Africa over the past 12 years. Chris Vertue, product manager, said a change in prosecutorial guidelines had caused the machines - which were certified in 1998 and have not changed - to fall outside of the necessary certification.

The Road Traffic Act governs drunken driving prosecutions and the machines have to comply with the South African National Standard (SANS).

Vertue said the company was waiting for the relevant paperwork from Germany before sending the machines to be recertified. He estimated it will take months to do this.

"We regret the situation. We are working to resolve the issue as soon as possible."

NPA spokesman Mthunzi Mhaga dismissed the suggestion of a flood of court cases challenging convictions, saying "we agreed to withdraw the cases which have not started". "The people who pleaded guilty did so as they accepted guilt. We do not expect them to challenge their own guilty pleas.”

He said the suspension affected the Western Cape and

Gauteng, but may soon also affect KwaZulu-Natal.

Mhaga said NPA colleagues in the Western Cape had been in talks with authorities in an attempt to solve the problem.

“There was an accreditation problem with the machines and now they have to be reviewed by Saps to make sure they are up to standard. As soon as they’re up to that standard, they can be used again.”

Mayoral committee member for safety and security JP Smith said yesterday that he was unaware of the suspension. “In fact, we are rolling out plans to buy two additional machines that will test for even more substances.”

He said the machines in Cape Town were looked after

with meticulous care, with regular calibrations.

Arrive Alive spokesman Gary Ronald called the suspension a “very big blow” to law enforcement and road safety.

Ronald said research had shown about 30 percent of drivers killed in accidents tested positive for alcohol.

Metro Police and police officers nabbed several drunk drivers in operations over the weekend. Lourens said all 27 arrested for drunk driving had been tested with a Dräger machine.

Transport and Public Works MEC Robin Carlisle was yesterday unavailable for comment.

Hishaam Mohamed, head of the justice department in the Western Cape, was unaware of the suspension and would consult colleagues today.