A motorist undergoes an alcoblow test.(Photo: Courtesy)
The Court of Appeal has ruled that the Traffic Act does not specify whether a person who is drunk, even excessively, commits an offence by driving under the influence of alcohol.
In what could be a big blow to the National Transport and Safety Authority (NTSA), Justices GBM Kariuki, Festus Azangalala and Fatuma Sichale said law makers have to go back and bridge the gaps in the Act to tame drink driving.
“Breathalyzer rules do not specify whether a motorist who has consumed alcohol in such quantity that the blood alcohol concentration in his body is beyond the prescribed limit is guilty of an offence if he is not incapable of having proper control of the vehicle,” the judges found.
The court did not however rule that the use of alcoblow is illegal.
The rule in question requires that no driver should handle a vehicle if he or she has consumed alcohol in excess of 35 microgrammes in 100 millilitres of breath, 80 milligrammes of alcohol in 100 mililitres of blood and 107 miligrammes of alcohol in 100 mililitres of urine.
Those found to be above the limits will be fined Sh100,000 or imprisoned for a term not exceeding two years or both, the rule stipulates. Section 44 (1) of the Traffic Act, however, does not prescribe limits in drink-driving. It says its an offence for a private motorist to be under the influence of alcohol or drugs to such an extent they are incapable of having proper control of the vehicle.
“It does not seem plausible to purport that it is an offence to drive after consumption of alcohol even beyond the prescribed limits while at the same time consumption of alcohol even beyond the prescribed limits is not an offence if the motorist is not incapable of having proper control of the vehicle,” the court said.
The proprietor of Reminisce Bar, Mr Kariuki Ruitha, had challenged the use of alcoblow, saying using the gadgets on motorists who had not been arrested of any traffic offence was against the law. He however lost at the High Court before appealing at the Court of Appeal.
Alcoblow was first introduced in 2006 to tame drunk drivers when it was realised that most of accidents occur between Friday and Sunday, especially at night. In Nairobi alone, for instance, statistics show that at least three to five people lose their lives weekly as a result of road accidents. Most of these accidents occur on Mombasa Road, Waiyaki Way, Jogoo Road and Ngong Road. Reacting to the statements by the judges, NTSA Director General Francis Meja said driving under the influence of alcohol is still a traffic offence.
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He said in its observation, the court noted that there was need to amend the Traffic Act to realign it to the breathalyser rules.
“NTSA informs members of the public that driving under the influence of alcohol is an offence and that the Authority will continue to execute its mandate so as to keep our roads safe,” he said