Asked by Lakkisa on 02-12-2017 12:46:49
Question posted in the Criminal Law category relating to KwaZulu-Natal

Dear Sir/Madam,

Please give me proper advise to my situation,Incident happened where I had 2 glasses of wine at a restaurant and while i am going back home I was stopped by police in a road block. They did the breathalyzer test and said that saying my alcohols limits are higher than normal and they took my blood samples at the same time thereafter they took my blood test and sent me to the police station. It is my first offence in South Africa.I paid the bail amount in the police station and the next day morning i went to the court for the first appearence.The court said they will wait for the blood tests to come out and adjourned the hearing to next month.

Please advise me what are the proceedings the court will take in next hearing. what happens if they found my alcohol level in blood is higher than normal. What must i do in this situation to get out of the case. They checked the licence but didnt say anything about it. and the court also dont know that my licence is expired. I am a foreigner. Will they try to check the licence validity with my home country.

Further information relating to Question:

I got another foreign licence which is not expired and they used that licence to capture my details.
Will they try to contact my home country to check the validity of licence. I heard the court will give the fine and take away the licence depending on the alcohol levels in blood results.Please tell me will court ask to check the validity of my licence with my home country or will just give the fine and take away the licence for a period .It is my first offence. What other impacts i will have on my career with this situation.

Posted by Att. Patrick on 02-12-2017 20:41:29

Hi there and thank you for your question,

It sounds as if you were arrested for drunk driving. Since they took blood from you, you were either charged with "driving under the influence". Your case will be postponed again and again until the blood results are returned from the police lab. If the blood results are "borderline", then the prosecutor might withdraw the charges. If they are really over the limit (which is strange if you only had 2 glasses of wine) then your case will be postponed for trial.

It will be at that point in time that you should hire a lawyer to assist you in court. There are a lot of tricks, etc that the lawyer can use to fight the case - tricks that the normal person would not know about. The first trick is to make written representations to the prosecutor explaining why he/she should withdraw the charges. The second trick is to ask the prosecutor to withdraw the charges on condition that you attend some form of alternative diversion program, such as community service. If none of that works, then the lawyer can ensure that the blood work was done properly, and check all of the certificates for the machines, etc.

I can't refer you to a specific lawyer, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in your area who will be able to assist you further! There is an option to find an attorney who specialises in criminal law. Click on that.

They don't typically check the validity of a driving licence, especially if it is a foreign licence. But, what you should do is to renew the licence as soon as possible. There is no point in getting into any further trouble.

If it is a first offence, and you are only a little bit over the limit, and your lawyer explains to the court why they should NOT take your licence away, the court won't. I also don't think that the court can take away a foreign licence. I think that they can only take away your SA licence - if you had one.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Dear Patrick,
Many Thanks for quick response.

Because i m living here in SA it is not possible for me to renew the expired Foreign licence.
I am trying to get the SA licence before my next hearing date. On my bail slip it is only mentioned as drunk and driving.
Can i say that i lost the foreign licence some where after the incident if they ask me for it as they didn't know the licence is expired.??? any implications if i say that??
I know that i am guilty and had more alcohol than a limit at the office function i attended. I regret of drinking and driving which i will never do again. Its my first Offence in SA.
I found a lawyer in court area on the same day and asked to represent me at my first appearance in the court. and my case is with the lawyer now.
I am ready to do a charity work or community service on weekends and after office hours on weekdays.

Is it possible to check what information the police send to the court. ??
How long it is taking these days to get the blood test results for Durban blood samples. Blood samples will be tested in durban or Pretoria ???.
The first trick that you mentioned is to make written representations to the prosecutor explaining why he/she should withdraw the charges. Can you please tell me in brief what kind of written representations can be used to with draw the charges. ??
Will there be any imprisonment in my case.?

Also I am ready to pay any kind of fine amount to court to avoid criminal record and to get out of the case and to have peace of mind.

Posted by Att. Patrick on 03-12-2017 19:41:08

Okay, so if your foreign driving licence has expired you've got a problem. You need to sort that out, because essentially you are now driving without a licence. You need to go to your nearest traffic department and ask what you need to do to apply for a local licence!

You won't be asked for your driving licence at your next hearing. The charge is drunk driving, not driving without a licence. 

You can only receive a copy of the docket once the police have finished their investigations, and only after the blood results are back. Until then, you are not legally entitled to anything.

The blood tests can take up to 2 years. 

Regarding the representations, this would work best if you were like 1% over the limit. If you were 40% over the limit, then it wouldn't work. You should speak to your current attorney about representations.

No, no imprisonment! Rest easy.

Look, most of your answers regarding prison/fine would be answered only after your blood results are back. It makes a difference "how" much over the limit you were.

You need to wait until then. Sorry.

Thanks Patrick.
The information you gave really helps me to have some peace of mind.
While the case is in pending state, can i travel to overseas to visit the family and come back SA. Will there be any problem at the immigration in the airport as i am on bail currently.
I don't have any slip stating the current bail extension to next month except the receipt of bail amount i paid in the police station on the day i was drunk driving . Because the case postpones again and again in future, Do i need to ask for the bail extension document from the court .
Will the court allow me to travel overseas to visit my family.

Posted by Att. Patrick on 05-12-2017 22:53:55

Yes, you can travel where ever you want.

You must just ensure that you don't miss a court appearance. There won't be any immigration issues, unless the prosecutor made an application that your passport is taken away from you. 

There is no such thing as a bail extension. The receipt of the bail is the only thing. 

You must just ensure that you're back in time for your next court appearance. 

It often happens that the prosecutor temporarily withdraws the charges until such time as the blood work is back. That means that you won't need to continue going to court every 4 weeks. If the prosecutor continues to postpone the case over and over, you need to ASK the court to withdraw the charges because you can't be expected to come again and again and again, just for the prosecutor to postpone for another 4 weeks.

The court must order the prosecutor to withdraw the charges until the blood work is back. 

Once the blood work is back, they will summons you to court again.

Dear Patrick,
I managed to get the SA driving licence.
I went to the court this week and my blood results are in the court now. Prosecutor told me the alcohol content is 1.26 and there will be a fine if i want to close the case the same day. The attorney i hired gone for holiday and didn't show up in the court on that day and the court postponed to case to next week.
I am not sure how serious the situation is now, Please can you advise me what will be the fine amount for the alcohol level in blood 1.26. Will they cancel my driving licence for these levels. I am not very sure how. Please can you advise me how to proceed further in this situation.

Posted by Att. Patrick on 01-04-2018 10:25:32

Hi there,

I don't know what the fine amount will be for 1.26. It depends on a lot of circumstances, not just the blood level. e.g. time of day, day of week, area that you were caught in, etc.

They shouldn't cancel your licence for that. 

My advice, since you've hired an attorney, is to get him to do his job and represent you properly in court next week. He must also spend an hour with you before court to explain the fine, and your various options!

okay thanks . I will do that.

Hi Patrick,
I went to court to double check the blood results. And I found it is 0.16. It's not 1.26 as I mentioned in my earlier post. Please can you advice what are the options n fines I may get in this stage..

Posted by Att. Patrick on 05-04-2018 22:42:55

Again, I can't comment on the fine amount because it depends on a lot of circumstances, not just the blood level. e.g. time of day, day of week, area that you were caught in, etc. You will NEED to talk to the prosecutor about this, or your lawyer who is fully apprised of all of the backgrounds facts. It also depends on which court you are in!

What I can tell you is that the legal blood alcohol limit in South Africa is less than 0.05 g per 100 ml. 

If your results were 0.16, you were 3 times over the limit! So that's quite severe.

Hi Patrick,
i went to court yesterday. And the magistrate said
!!!! R5000 or 5 month imprisionment wholly suspended to a period of 5 years on condition xxxxxx is not convicted in contravention of 565(2) act xx of 1996 comitted along the period of suspension .!!!!!!
The writing is not clear on charge sheet where ever i used XX in the above sentence.
Can you explain what does it mean.

Hi Patrick,
i went to court yesterday. And the magistrate said
!!!!
R5000 or 5 month imprisionment wholly suspended to a period of 5 years on condition xxxxxx is not convicted in contravention of 565(2) act 93 of 1996 commtted along the period of suspension .
S 35(3) Act 93 of 1996 - accuse licence is not to be xxxxxxx or suspended.
!!!!

The writing is not clear on charge sheet where ever i used xxxx in the above sentence.
Can you explain what does it mean. ?????
My attorney saying there is no fine and no suspension. After the hearing the police inside the court took my finger print in a document.
Is it normal to take finger print inside the court even though there is no fine ??

Posted by Att. Patrick on 25-04-2018 13:49:21

Basically, if you don't do it again, you are free to go.

If you do it again, within 5 years, then you'll need to pay R5000 or 5 months in jail.

There is accordingly no fine that you must pay now, and no suspension of your driving licence.

This is a great outcome for you!

Hi Patrick,
Thank you so much for your response.
I wanted to know one more thing, As it is Wholly suspended case and i am not paying any fine for now,
1.do my details will be in South African Police criminal record ???.
2.What it will show in police clearance certificate if i apply one for???
3. If its in criminal record will it be a problem for getting the VISA's for me and for job applications.??
4.I wanted to apply for SA passport next year, how can get away from the criminal record .
Is there any way that i can make an application to the state to remove criminal record as will not get jobs in future..
Please advise , your help is very much appreciated.

Posted by Att. Patrick on 16-05-2018 15:19:15

Yes, it is a wholly suspended outcome.

Yes, your details will be in the SAPS criminal system.

Yes, it will show in your clearance certificate.

Yes, it MIGHT be a problem for any VISA applications.

You will need to wait 10 years before you can apply for it to be expunged!