Sentencing in drunk driving cases

13 Apr Sentencing in drunk driving cases

In a case of driving under the influence of liquor, the state must prove beyond a reasonable doubt that the accused drove a vehicle on a public road while under the influence or while the alcohol content of the accused’s blood exceeded 0,05g per 100ml. 

When these elements have been established, a court will consider in imposing sentence:

• the degree to which a motorist was under the influence of liquor 
• the extent to which his or her ability to drive was affected 
• traffic conditions at the relevant time 
• the type of vehicle being driven and
•  the actual harm or danger caused by his or her driving. It will also consider the time and place of the offence, and
• whether the accused is a first offender.

In determining a sentence for driving with excessive alcohol in the blood, a court will consider the manner of the accused’s driving at the time of the offence. Driving slowly and with exaggerated caution may be a characteristic of inebriation as erratic or reckless driving is. Imprisonment without the option of a fine is not usually imposed on a first offender, except in serious cases, such as when the accused was heavily under the influence or guilty of recklessness or gross negligence.

Case law (Pedro v S)

Mr Selwin Pedro was convicted of contravening section 65(2)(a) of the National Road Traffic Act 93 of 1996. Section 65(2)(a) of the National Road Traffic Act 93 of 1996, says:

(1) No person shall on a public road:
(a) drive a vehicle; or
(b) occupy the driver’s seat of a motor vehicle the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.
(2) No person shall on a public road:
(a) drive a vehicle; or
(b) occupy the driver’s seat of a motor vehicle the engine of which is running, while the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 gram per 100 millilitres, or in the case of a professional driver referred to in section 32, not less than 0,02 gram per 100 millilitres.

The court adopted the approach in S v Lourens (supra) by Savage J who opined that imposing a sentence is an action that requires the court to work purposively at finding the most appropriate sentence in a manner which accords with an accused’s fair trial rights embodied in section 35 of the Constitution.

• See S v Zinn at 540G, in that in sentencing, the personal circumstances of the accused are to be considered together with, inter alia, society’s demand for retribution which must be carefully balanced
• See S v Banda 1991 (2) SA 352 (BG) at 355A: The elements of the triad contain equilibrium and a tension. A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of and to the exclusion of the others.

The court in Pedro v S held that, in imposing an appropriate sentence for a contravention of section 65(1) or (2) of the NRTA, the court must give sufficient weight to all relevant circumstances including aggravating and mitigating factors as well as the circumstances relating to the offence envisaged in section 35(3) of the NRTA. Accordingly, the court may, having regard to:

• The nature of the offence
• The public interest
• The personal circumstances of the accused 
• The effect of the suspension order on the offender, decide on the appropriate sentence and the period of suspension (if necessary), of the driving license.

Conclusion

When dealing with a case of driving under the influence of liquor, the state must prove beyond a reasonable doubt that the accused drove a vehicle on a public road while under the influence or while the alcohol content of the accused’s blood exceeded 0,05g per 100ml. Once these elements have been established, the courts then will consider the facts listed above.

Lastly in drunk and driving cases, imprisonment without the option of a fine is not usually imposed on a first offender, except in serious cases, such as when the accused was heavily under the influence or guilty of recklessness or gross negligence.