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Honorary Master
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- Apr 19, 2005
- Messages
- 103,196
They're excempt from this law. Any emergency/medical officer are automatically excempt.
Or am I wrong?
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State to impound drunk drivers' cars
- Thread starter kaspaas
- Start date
They're excempt from this law. Any emergency/medical officer are automatically excempt.
Or am I wrong?
Chatmaster
Well-Known Member
- Joined
- Nov 21, 2005
- Messages
- 348
Tibby.dude I respect your thoughts on this but something I think I didn't make clear about my views is that I do not have the slightest biit of time for any drunk person, nevermind a drunk driver. They are scum and certainly have no place in my life. My problem lies with the solution that government has to take property which are not theirs to take! They do however have the right to take a drivers license as that is part of what government is tasked to do. However taking private property is not on the agenda, government is trying to collect money everywhere they can but do not look at actual constructive solutions. They rather resort to criminal like laws and behavior.
The_Unbeliever
Honorary Master
- Joined
- Apr 19, 2005
- Messages
- 103,196
But don't you agree that a drunken driver without car will think twice before drinking and driving again? Especially should he be still paying off on the car the state "stole"?
Chatmaster
Well-Known Member
- Joined
- Nov 21, 2005
- Messages
- 348
No, but a drunk driver that had a year or so to think about it in jail, and knowing has no means to obtain a drivers license most certainly will. Added to that, there is no way the state can take a vehicle from me and expect me to pay it, as the vehicle theoretically belongs to the bank.
Drunk Driving and Road Safety
Drunk Driving is one of the biggest threats to Road Safety in South Africa. Research indicates that 50% of people who die on the roads have a blood alcohol concentration above 0.05 gram per 100 millilitres.
Brief Summary:
Legislation:
The National Road Traffic Act (NRTA), Act 93 of 1996 as amended.
Section 65: Driving while under the influence of intoxicating liquor or drug having narcotic effect, or with excessive amount of alcohol in blood or breath
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.
Blood Alcohol Content (BAC) limits:
Concentration of alcohol in blood: 0,05 gram per 100 millilitres (all drivers), professional drivers: 0,02 gram per 100 millilitres.
Breath alcohol content: 0,24 milligrams per 1000 millilitres (all drivers), professional drivers: 0,10 milligrams per 1000 millilitres.
Any person detained for an alleged contravention of any provision of this section shall not -
(b) during his or her detention smoke until the specimen has been taken, as the case may be.
No person shall refuse that a specimen of blood, or a specimen of breath, be taken of him or her.
COURT PROCEDURE
In a case of driving under the influence of liquor, the state must prove 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.
Evidence against the accused may be given by the police, the examining doctor or any person who, at the time of the alleged offence, thought the accused was under the influence.
The opinions expressed in court must be qualified by reasons. For instance, the statement 'I believe he was under the influence' is not acceptable evidence, unless it is followed by an observation such as 'because he smelt strongly of liquor and his speech was slurred'.
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.
Section 35: On conviction of certain offences licence and permit shall be suspended for a minimum period and learner's or driving licence may not be obtained
(1) Subject to subsection (3), every driving licence or every licence and permit of any person convicted of an offence referred to in -
(a) section 61 (1) in the case of death of or serious injury to a person'
(b) section 63 (1) driving recklessly,
(c) section 65 (1), (2) or (5)'
where such person is the holder of a driving licence or a licence and permit, shall be suspended in the case of -
(i) a first offence - for a period of at least six months
(ii) a second offence, for a period of at least five years; or
(ii) a third or subsequent offence, for a period of at least ten years.
A recent judgment by the Cape High Court has opened the door for the Asset Forfeiture Unit to confiscate the cars of drunken drivers and speedsters. This has been much debated in legal circles and the Arrive Alive Campaign has received praise from members of the public who have seen enough trauma caused by the offenders. For an understanding of the new measures it is important to focus on the history behind these drastic measures and the legislation that enabled the National Prosecuting Authority to approach the court for the preservation order.
Background on the Incidence of Drunken Driving in South Africa
• During a countrywide survey conducted during 2003, the breath alcohol of 2% of all drivers stopped before 18h00 was more than what was legally permissible. After 18h00, the percentage increased to 5%.
• The blood alcohol levels of 46,5% of drivers killed on South African roads during 2001, was more than what was legally permitted.
• The blood alcohol levels of 18,8% of all drivers killed during 2001 exceeded 4 times what was legally permissible, whilst the blood alcohol levels of 9,5% of drivers killed exceeded 5 times what was legally permissible.
• The incidence of drunken driving in South Africa is unacceptably high and the State has a compelling interest in taking all lawful measures aimed at combating this phenomenon, including, and especially in the case of repeat offenders, preservation and forfeiture of the instrumentalities used in these offences, namely the motor vehicles involved.
Drunk Driving is one of the biggest threats to Road Safety in South Africa. Research indicates that 50% of people who die on the roads have a blood alcohol concentration above 0.05 gram per 100 millilitres.
Brief Summary:
Legislation:
The National Road Traffic Act (NRTA), Act 93 of 1996 as amended.
Section 65: Driving while under the influence of intoxicating liquor or drug having narcotic effect, or with excessive amount of alcohol in blood or breath
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.
Blood Alcohol Content (BAC) limits:
Concentration of alcohol in blood: 0,05 gram per 100 millilitres (all drivers), professional drivers: 0,02 gram per 100 millilitres.
Breath alcohol content: 0,24 milligrams per 1000 millilitres (all drivers), professional drivers: 0,10 milligrams per 1000 millilitres.
Any person detained for an alleged contravention of any provision of this section shall not -
(b) during his or her detention smoke until the specimen has been taken, as the case may be.
No person shall refuse that a specimen of blood, or a specimen of breath, be taken of him or her.
Penalties Imposed For Drunk Driving
COURT PROCEDURE
In a case of driving under the influence of liquor, the state must prove 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.
Evidence against the accused may be given by the police, the examining doctor or any person who, at the time of the alleged offence, thought the accused was under the influence.
The opinions expressed in court must be qualified by reasons. For instance, the statement 'I believe he was under the influence' is not acceptable evidence, unless it is followed by an observation such as 'because he smelt strongly of liquor and his speech was slurred'.
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.
Section 35: On conviction of certain offences licence and permit shall be suspended for a minimum period and learner's or driving licence may not be obtained
(1) Subject to subsection (3), every driving licence or every licence and permit of any person convicted of an offence referred to in -
(a) section 61 (1) in the case of death of or serious injury to a person'
(b) section 63 (1) driving recklessly,
(c) section 65 (1), (2) or (5)'
where such person is the holder of a driving licence or a licence and permit, shall be suspended in the case of -
(i) a first offence - for a period of at least six months
(ii) a second offence, for a period of at least five years; or
(ii) a third or subsequent offence, for a period of at least ten years.
A recent judgment by the Cape High Court has opened the door for the Asset Forfeiture Unit to confiscate the cars of drunken drivers and speedsters. This has been much debated in legal circles and the Arrive Alive Campaign has received praise from members of the public who have seen enough trauma caused by the offenders. For an understanding of the new measures it is important to focus on the history behind these drastic measures and the legislation that enabled the National Prosecuting Authority to approach the court for the preservation order.
Background on the Incidence of Drunken Driving in South Africa
• During a countrywide survey conducted during 2003, the breath alcohol of 2% of all drivers stopped before 18h00 was more than what was legally permissible. After 18h00, the percentage increased to 5%.
• The blood alcohol levels of 46,5% of drivers killed on South African roads during 2001, was more than what was legally permitted.
• The blood alcohol levels of 18,8% of all drivers killed during 2001 exceeded 4 times what was legally permissible, whilst the blood alcohol levels of 9,5% of drivers killed exceeded 5 times what was legally permissible.
• The incidence of drunken driving in South Africa is unacceptably high and the State has a compelling interest in taking all lawful measures aimed at combating this phenomenon, including, and especially in the case of repeat offenders, preservation and forfeiture of the instrumentalities used in these offences, namely the motor vehicles involved.
CONFISCATION OF VEHICLES OF DRUNK DRIVERS
A recent judgment by the Cape High Court has opened the door for the Asset Forfeiture Unit to confiscate the cars of drunken drivers and speedsters. This has been much debated in legal circles and the Arrive Alive Campaign has received praise from members of the public who have seen enough trauma caused by the offenders. For an understanding of the new measures it is important to focus on the history behind these drastic measures and the legislation that enabled the National Prosecuting Authority to approach the court for the preservation order.
Background on the Incidence of Drunken Driving in South Africa
• During a countrywide survey conducted during 2003, the breath alcohol of 2% of all drivers stopped before 18h00 was more than what was legally permissible. After 18h00, the percentage increased to 5%.
• The blood alcohol levels of 46,5% of drivers killed on South African roads during 2001, was more than what was legally permitted.
• The blood alcohol levels of 18,8% of all drivers killed during 2001 exceeded 4 times what was legally permissible, whilst the blood alcohol levels of 9,5% of drivers killed exceeded 5 times what was legally permissible.
• The incidence of drunken driving in South Africa is unacceptably high and the State has a compelling interest in taking all lawful measures aimed at combating this phenomenon, including, and especially in the case of repeat offenders, preservation and forfeiture of the instrumentalities used in these offences, namely the motor vehicles involved.
The Conduct that has lead to the Application for a Preservation Order
It is alleged that the driver of the vehicle [the respondent] was involved in several offences for which he is being prosecuted. These include:
• 2 Incidents of driving a motor vehicle whilst under the influence of alcohol – alternatively , driving whilst the concentration of alcohol in his blood was not less than 0.05g / 100ml
• A blood sample taken from the driver at the time of the first incident revealed a concentration of alcohol in his blood of 0.18g/100ml. Given the legal limit of 0.05g/100ml for non professional drivers, the concentration of alcohol in his blood was more than 3 times what was legally permitted.
• A blood sample taken from the driver at the time of the second incident revealed a concentration of alcohol of 0.23g/100ml, which is more than 4 times the legal limit.
• Defeating or obstructing the course of justice having driven away after being stopped by a traffic officer
• Reckless or negligent driving as prohibited by Section 63(1) of the Road Traffic Act
The respondent also faces a charge of speeding. On 10 April 2004 his vehicle was photographed by means of speed detection apparatus, whilst traveling at 189km/h in an area where the speed limit was 120km/h.
The Legislation
• The application for a preservation of property order was sought by the National Director of Public Prosecutions in terms of section 38(1) of the Prevention of Organised Crime Act 121 of 1998
• Section 38(2) provides that a High Court shall grant a preservation of property order if there are reasonable grounds to believe that the property concerned is:
(i) an instrumentality of an offence referred to in Schedule 1 to the Act
(ii) proceeds of unlawful activities
• The National Director of Public Prosecutions stated that the vehicle was an instrumentality of the following offences:
(i) Driving on a public road whilst under the influence..
(ii) Defeating or obstructing the course of justice
(iii) Reckless or negligent driving
(iv) Driving in excess of the speed limit
“Instrumentality” is defined as “any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the republic or elsewhere.”
The National Director of Public Prosecutions submitted that the vehicle played a role / was instrumental in a reasonably direct sense in the commission of the offence of driving under the influence of alcohol, in defeating or obstructing the course of justice, in reckless or negligent driving as well as driving at excessive speed.
As the vehicle was leased from another owner [second respondent] and the Act makes provision for the creation of a so called “innocent owner “defense” the legal owner would be afforded the opportunity to prove that it neither knew nor had reasonable grounds to suspect that the vehicle would be used as an instrumentality of a schedule 1 offence – and thereby have its' interests excluded from the forfeiture order.
The vehicle will remain the property of the institution providing the finance until the last instalment has been paid.What would be forfeited in such a case is the right of the respondent to " possess, enjoy and use" the vehicle.
Practical implications of the order
• All persons with knowledge of the order are prohibited from removing, taking possession of or control over ……or dealing in any other manner with the property to which the order relates
• A curator is appointed over the property
• The property may be disposed of the property on 30days notice in the event that the respondent does not meet his financial obligations to the second respondent [ and then only with the consent of the second respondent
• The property may be disposed by agreement with all parties who have a legal interest in the property concerned in order to defray the costs of administering the property
• An application will be made for an order forfeiting the property to the state – and such application may be opposed by someone who has an interest in the property.
Wendy Watson, the Director of Land Transport Regulation at the Department of Transport has indicated that this course of action is aimed especially at habitual offenders and the most dangerous drivers who continue to drink and drive or travel at very high speeds in spite of being caught. The Asset Forfeiture Unit, together with Arrive Alive and enforcement agencies has identified many dangerous drivers who are repeat offenders over the past few months.
Supreme Court of Appeal
The Supreme Court of Appeal (SCA) decided on the 9th of November 2006 that a motor vehicle that is driven under the influence of liquor or while the level of alcohol in the driver’s blood exceeds the prescribed limit, is liable to be forfeited to the State in terms of the Prevention of Organised Crime Act.
It was held that the Act is not restricted to organized crime, but extends to ordinary crimes committed by individuals, and that a motor vehicle constitutes an ‘instrumentality’ of the offences referred to above and is thus capable of being forfeited to the State in terms of the Act.
The court also held, however, that a vehicle driven in those conditions is not liable to forfeiture in every case. It held that a court may only order the vehicle to be forfeited if such an order would be proportional to the particular offence, which requires a court to weigh the particular circumstances in which an order for forfeiture is sought.
http://www.arrivealive.co.za/pages.asp?mc=drunken&nc=confiscation
A recent judgment by the Cape High Court has opened the door for the Asset Forfeiture Unit to confiscate the cars of drunken drivers and speedsters. This has been much debated in legal circles and the Arrive Alive Campaign has received praise from members of the public who have seen enough trauma caused by the offenders. For an understanding of the new measures it is important to focus on the history behind these drastic measures and the legislation that enabled the National Prosecuting Authority to approach the court for the preservation order.
Background on the Incidence of Drunken Driving in South Africa
• During a countrywide survey conducted during 2003, the breath alcohol of 2% of all drivers stopped before 18h00 was more than what was legally permissible. After 18h00, the percentage increased to 5%.
• The blood alcohol levels of 46,5% of drivers killed on South African roads during 2001, was more than what was legally permitted.
• The blood alcohol levels of 18,8% of all drivers killed during 2001 exceeded 4 times what was legally permissible, whilst the blood alcohol levels of 9,5% of drivers killed exceeded 5 times what was legally permissible.
• The incidence of drunken driving in South Africa is unacceptably high and the State has a compelling interest in taking all lawful measures aimed at combating this phenomenon, including, and especially in the case of repeat offenders, preservation and forfeiture of the instrumentalities used in these offences, namely the motor vehicles involved.
The Conduct that has lead to the Application for a Preservation Order
It is alleged that the driver of the vehicle [the respondent] was involved in several offences for which he is being prosecuted. These include:
• 2 Incidents of driving a motor vehicle whilst under the influence of alcohol – alternatively , driving whilst the concentration of alcohol in his blood was not less than 0.05g / 100ml
• A blood sample taken from the driver at the time of the first incident revealed a concentration of alcohol in his blood of 0.18g/100ml. Given the legal limit of 0.05g/100ml for non professional drivers, the concentration of alcohol in his blood was more than 3 times what was legally permitted.
• A blood sample taken from the driver at the time of the second incident revealed a concentration of alcohol of 0.23g/100ml, which is more than 4 times the legal limit.
• Defeating or obstructing the course of justice having driven away after being stopped by a traffic officer
• Reckless or negligent driving as prohibited by Section 63(1) of the Road Traffic Act
The respondent also faces a charge of speeding. On 10 April 2004 his vehicle was photographed by means of speed detection apparatus, whilst traveling at 189km/h in an area where the speed limit was 120km/h.
The Legislation
• The application for a preservation of property order was sought by the National Director of Public Prosecutions in terms of section 38(1) of the Prevention of Organised Crime Act 121 of 1998
• Section 38(2) provides that a High Court shall grant a preservation of property order if there are reasonable grounds to believe that the property concerned is:
(i) an instrumentality of an offence referred to in Schedule 1 to the Act
(ii) proceeds of unlawful activities
• The National Director of Public Prosecutions stated that the vehicle was an instrumentality of the following offences:
(i) Driving on a public road whilst under the influence..
(ii) Defeating or obstructing the course of justice
(iii) Reckless or negligent driving
(iv) Driving in excess of the speed limit
“Instrumentality” is defined as “any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the republic or elsewhere.”
The National Director of Public Prosecutions submitted that the vehicle played a role / was instrumental in a reasonably direct sense in the commission of the offence of driving under the influence of alcohol, in defeating or obstructing the course of justice, in reckless or negligent driving as well as driving at excessive speed.
As the vehicle was leased from another owner [second respondent] and the Act makes provision for the creation of a so called “innocent owner “defense” the legal owner would be afforded the opportunity to prove that it neither knew nor had reasonable grounds to suspect that the vehicle would be used as an instrumentality of a schedule 1 offence – and thereby have its' interests excluded from the forfeiture order.
The vehicle will remain the property of the institution providing the finance until the last instalment has been paid.What would be forfeited in such a case is the right of the respondent to " possess, enjoy and use" the vehicle.
Practical implications of the order
• All persons with knowledge of the order are prohibited from removing, taking possession of or control over ……or dealing in any other manner with the property to which the order relates
• A curator is appointed over the property
• The property may be disposed of the property on 30days notice in the event that the respondent does not meet his financial obligations to the second respondent [ and then only with the consent of the second respondent
• The property may be disposed by agreement with all parties who have a legal interest in the property concerned in order to defray the costs of administering the property
• An application will be made for an order forfeiting the property to the state – and such application may be opposed by someone who has an interest in the property.
Wendy Watson, the Director of Land Transport Regulation at the Department of Transport has indicated that this course of action is aimed especially at habitual offenders and the most dangerous drivers who continue to drink and drive or travel at very high speeds in spite of being caught. The Asset Forfeiture Unit, together with Arrive Alive and enforcement agencies has identified many dangerous drivers who are repeat offenders over the past few months.
Supreme Court of Appeal
The Supreme Court of Appeal (SCA) decided on the 9th of November 2006 that a motor vehicle that is driven under the influence of liquor or while the level of alcohol in the driver’s blood exceeds the prescribed limit, is liable to be forfeited to the State in terms of the Prevention of Organised Crime Act.
It was held that the Act is not restricted to organized crime, but extends to ordinary crimes committed by individuals, and that a motor vehicle constitutes an ‘instrumentality’ of the offences referred to above and is thus capable of being forfeited to the State in terms of the Act.
The court also held, however, that a vehicle driven in those conditions is not liable to forfeiture in every case. It held that a court may only order the vehicle to be forfeited if such an order would be proportional to the particular offence, which requires a court to weigh the particular circumstances in which an order for forfeiture is sought.
http://www.arrivealive.co.za/pages.asp?mc=drunken&nc=confiscation
In most motor vehicle accidents the drunk driver has a higher chance of surviving than a sober driver.
All persons arrested and convicted for drunk driving should be made to perform community service by helping out on ambulances, mortuary vechiles and at hospital casualty wards so that they can see the result of driving while under the influence.
All persons arrested and convicted for drunk driving should be made to perform community service by helping out on ambulances, mortuary vechiles and at hospital casualty wards so that they can see the result of driving while under the influence.
Datura
Captain Faptastic
- Joined
- Oct 12, 2006
- Messages
- 47,705
Yep very good idea!
If they get it right