Question posted in the Criminal Law category relating to Gauteng
In August 2013 while I was a student in Johannesburg I was arrested for being over the limit after being breathalysed at a roadblock. I know it is incredibly stupid to drive after drinking. I am thankful that I did not cause an accident or hurt anyone and having learned my lesson I have not done it since and will not touch alcohol when I know I am driving.
After being arrested they took a sample of my blood and I spent the night in jail in Brixton. My family bailed me out the next morning and I was given a court date for February 2014. I arrived at court and was refunded my bail money. My name was never "called" though and I never actually appeared in front of a judge. There was little to no communication with me about what would happen next and the attorney I had with me (don't have his details anymore) said that he heard that there were issues in processing blood tests, not just mine but everyone's. A backlog or something? So after waiting for an hour or so we left. This is speculation, but I have heard that it is quite common that DUI cases hardly ever get heard in court in South Africa. Not sure if this is true?
My real question is, what is my criminal status under SA law now? I was arrested but not convicted so what will it say on my police clearance certificate and how should I legally declare this arrest to employers or for visa purposes?
For a bit more context, I have since moved to the UK and am currently looking into applying for citizenship. One of the areas they explore is your criminality and of course I intend to be as open as possible, but I don't wish to do myself a disservice by providing incorrect information. I have previously declared the arrest to employers in the UK saying that I was "arrested but discharged and no further action has been taken". Obviously with citizenship the process is likely to be more rigorous and while I know you will not have expertise in UK immigration policy, I would be grateful for advice on:
1. What is my current criminal status in SA?
2. Will I be asked to appear in court should they eventually get to my case?
3. Do I have any options for getting my record "cleared" given the time that has passed and the fact that this has not been resolved or settled in or out of court?
Thank you for your advice.
Answer to the Question
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Okay, so if you didn't formally appear before the magistrate, and you were basically let go, with your bail money, then I think what happened is that the charges were provisionally withdrawn against you due to the massive backlog of testing blood.
What will happen is that one day (perhaps!) you will receive a call from the South African Police Services to say that they need to subpoena you to court because your blood test results are back. Then the trial against you will continue.
Q: What is my current criminal status in SA? --> At the moment, your criminal status in SA is that you are innocent but there are pending criminal charges against you. One might even argue (successfully) that there are no pending criminal charges against you because the charges were withdrawn.
Q: Will I be asked to appear in court should they eventually get to my case? --> Yes, perhaps, maybe. If the SAPS lab eventually gets to your blood test. Given the period of time, my guess is that they have lost your blood sample. Normally the delay is 12 - 18 months ... so your delay is massive. Chances are you'll never hear from SAPS again.
Q: Do I have any options for getting my record "cleared" given the time that has passed and the fact that this has not been resolved or settled in or out of court? --> Unfortunately, no, because IF your blood tests ever come back, then SAPS reserves the rights to charge you again. What you are asking is if you can force SAPS to withdraw the charges forever, without any right to charge you again - they won't do this.
If you apply for the status of your criminal record here in SA, there is a 50% chance that your arrest and the pending charges appear on it. If your fingerprints were taken, this % goes up somewhat. If your fingerprints were never taken, chances are that your arrest, and your case, are lost in the system never to appear again.
If I were you, I would say that there are no criminal charges against you and I would feel quite comfortable saying that given that the charges were technically withdrawn against you, and that over 6 years have gone by without any further action.
Otherwise, you could say that you were "previously arrested for allegedly driving under the influence, but the charges were withdrawn and you never appeared in court, and no further action has been taken, and that you are innocent."
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Information provided by client
I have in the meantime applied for a police clearance certificate to see what my status is. If it states that there are still pending charges against my name is there any way that I could take it to court to try to resolve the matter with our without the blood tests? And would it be in my interest to do so or is it better to just leave the issue as it is?
Answer to the Question
Well, the SAPS is the only body who could enroll the case for hearing in court. You can't.
So, my advice is that you should leave things as they are.