Know your rights around these seasonal hurdles
As predictable as tourists in Cape Town, roadblocks are a festive season feature. Recently, an email has made the rounds advising recipients to check their traffic fines and pay them to avoid being arrested in a roadblock. There is a lot of misinformation in circulation about this topic, and we explain the legal position around this and drinking and driving.
Cape Town committed to a safe festive season
Cape Town Mayor Geordin Hill-Lewis and the Mayoral Committee Member for Safety and Security, JP Smith, kicked off the city’s festive season safety campaign in November. It not only focuses on road safety; combating crime in hotspots, preventing hijackings, swimming pool safety and mountain trail safety are also part of the campaign. But a crack-down on drink driving is a high priority. The city has deployed more than 5000 law enforcement officers over the season. Daily roadblocks are scheduled with random breath testing.
If you are stopped in a roadblock
If you’re stopped at a roadblock under suspicion of driving under the influence (DUI), you will be breathalysed. In a traditional roadblock, if you’re over the legal limit you will be taken into custody and sent for a blood alcohol test. If the roadblock is a mobile alcohol evidentiary unit, your blood will be tested immediately. If you are innocent you will be released and no further action will be taken. If you are over the limit, you are more likely to be charged, as you will not need to be transferred to a testing centre. You will be allowed to phone a lawyer. If you’re detained, you have the right to consult your lawyer or apply for legal aid if you can’t afford a lawyer. The police must inform you of this right. You may be released on bail or you may be detained until your court appearance.
If you are arrested
When dealing with the police, even if you believe you have been wrongly arrested, it’s advisable always to stay calm and be polite. But if you’ve had too much to drink, your behaviour may be out of character and irrational. It is very important to keep your cool and avoid arguing. The best course of action is to say nothing. You must give your name, address and ID number, but you do not have to answer any questions. Don’t contradict the officer or make jokes. And don’t volunteer information about what you have had to drink. Without an attorney present, you may incriminate yourself.
Most importantly, you will be allowed to make a phone call. Use it wisely. Call a criminal defence attorney. If you don’t have SD Law’s number in your phone, call your spouse or friend you can trust and ask them to call us. Don’t waste your one phone call contacting someone who can’t give you concrete help.
If you are accused of having outstanding traffic fines
Driving under the influence is a much greater threat to public safety than an outstanding traffic fine, and it seems unlikely that traffic officers will use the roadblocks to clamp down on outstanding traffic fines and other infringements. However, that information is circulating and we can neither confirm nor deny it, so it’s important to know your rights. The police can only arrest you for an unpaid fine if a valid warrant of arrest has been issued. The arresting officer must advise you of the reason for your arrest and you should demand to see a copy of this warrant at the time. A traffic fine is not a warrant of arrest. An arrest warrant is issued by a judicial officer, not a traffic officer, if a person has been summoned to court and has failed to appear.
Under AARTO, which replaced the Criminal Procedure Act for prosecuting road traffic offences, these offences are categorised as infringements, or misdemeanours. The AARTO process concerning traffic fines has three stages:
Stage 1 – Infringement notice
– An infringement notice is issued for a traffic violation
– You have 32 days to make payment
– If payment is made within 32 days, you receive a 50% discount
Stage 2 – Courtesy letter
– If you do not make payment within 32 days, a courtesy letter will be issued
– The 50% discount is removed
– An additional R60 is added to the infringement notice amount by way of a fee for the letter
Stage 3 – Enforcement order
– If you do not react to a courtesy letter within 32 days, an enforcement order will be issued
– An additional R60 is added to the cumulative penalty
– You will be blocked on the eNATIS system
– All licensing transactions such as driving licence issuing, card renewal and vehicle licence disc issue or renewal will be blocked
It is highly unlikely you will be unaware of your outstanding fines but, if you are unsure of your status, you can check on the AARTO website. However, you cannot be arrested in a roadblock. Traffic officers are not authorised by any legislation to prevent motorists from proceeding with their journey if they are found to have outstanding traffic fines, for example in a roadside courtesy check of driver and vehicle licences.
Why take chances?
None of us is above the law. When it comes to drinking and driving, the risk is not worth the potential consequences. If you are found to be over the limit and subsequently charged and convicted of driving under the influence, the implications for your career and your life are far-reaching. Even worse, you may harm or even kill yourself or someone else. Call a taxi or get a lift. Nothing else makes sense.
With regard to traffic fines, why not take the opportunity to start the new year with a clean slate? You can’t be arrested for those fines, but you still have to pay them.
If the worst happens
At SD Law & Associates, we strongly advise you not to drink and drive, not only to avoid the legal consequences but for your own safety and that of other road users. If you make a mistake and are arrested for drinking and driving, contact criminal defence lawyer Simon Dippenaar on 076 116 0623. Save the number in your phone now.
SD Law
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.