Detained for being over the legal limit of alcohol? A few things Justice Project says you to be aware of!

Question:

Hi, I have a quick query. If you are detained for being over the legal limit of alcohol AND you are taken to be held in a holding cell, how long are you required to be there, is there a compulsory time period or are you able to be released one you have called a friend and they have come with the bail money, is there a need to be detained any further?

Also, if the police station has run out of “stationery” is it right for them to keep you detained for hours after even if you have the bail money? Surely that is prejudicial treatment to the one who is being detained because it is the stations’; mismanagement of their resources which has left the detained subject to suffer longer hours of detainment than is necessary.

And when giving blood, if you mention that you only allow YOUR medical practitioner to withdraw blood (before blood is drawn) and the ones drawing blood choose to not give you the option to call your medical practitioner, is that legal? I should think not.

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Answer:

Your question/s may have been “quick” to ask, but they are certainly not quick to answer. I shall however do my best to keep my answers short.

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1. When a person is arrested for alleged driving under the influence of alcohol, SAPS Standard Operating Procedures (SOPs) dictate that such a person must be detained for a minimum period of 4 hours so they may sober up before being released. In reality however, this period is often in excess of twelve hours.


2. A person who is detained for any criminal offence cannot simply be released until such time as the necessary documentation required to be contained in the docket has been completed and it is usually a detective that needs to complete such documentation.


3. Whilst there are always detectives on duty, at night or over weekends, there are usually not as many detectives on duty as would be the case during “normal working hours”.


4. I am not sure what you mean by the police station “running out of stationary” and therefore cannot comment on that beyond saying that if this were the case, one would think that your friend would have been detained until such time as he appeared before a court, or stationary was acquired.


5. Persons who are detained after allegedly committing a crime must be brought before a court within 48 hours of their arrest, except where such a time would occur over weekends and public holidays. Where it does, they must be brought before a court on the next court day.


6. The purpose of the above provision is for the arrested person to make an application for release on bail, however the Criminal Procedure Act further allows a policeman to grant bail to a detained person at any time before that. It does not however say how speedily they should do so, nor does it compel them to grant bail.


7. Insofar as the drawing of a blood sample for evidentiary purposes goes, your friend, and everyone else for that matter, has no right to demand that their medical professional of choice draw their blood sample. Section 65(9) of the National Road Traffic Act also defines refusal to provide a breath and/or blood sample as a criminal offence and whilst I realise that your friend may not necessarily have entirely refused to provide a blood sample, that would not be helpful to his case.


8. There is also a requirement in Section 65(3) of the National Road Traffic Act further requires that a blood sample be drawn within 2 hours of the alleged offence.

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It is my view that lengthy detentions of any person accused of any non-violent crime are both, unnecessary and counter-productive and this practice should really be reviewed by SAPS management as a matter of urgency. Furthermore, whilst SAPS SOPs hold that intoxicated persons should be checked on regularly (once per hour), or more regularly (once every half an hour) if that person is severely intoxicated. In reality, this rarely happens as prescribed and even if it did, a person can drown in their own vomit in a matter of minutes if they are intoxicated to the extent that they are comatose.

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Every case is different however and unfortunately, in this particular matter, it sounds to me like your friend’s behaviour towards police may have aggravated his position. Police men and women are human beings too and when people become uncooperative, and sometimes, combatant with them, it is very hard for them to resist the temptation to take longer to do something – thereby further inconveniencing the source of their frustrations, without breaking the law. The behaviour described in this story appears to indicate that your friend was obstructive towards police and this could most certainly have aggravated the situation and extended his detention, as opposed to helping the situation.

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Best Regards,

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Howard Dembovsky

National Chairman – Justice Project South Africa (NPC)

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Detained for being over the legal limit of alcohol? A few things Justice Project says you to be aware of!

Justice Project offers Clarification on unpaid traffic fines

On Tuesday 9 February 2015 the Road Traffic infringement Agency put out a media release with the grossly misleading headline: “UNPAID FINES BLOCK LICENSING BY AUTHORITIES”.

While the content of the release vaguely clarifies the matter and correctly states that an Enforcement Order will result in licensing transactions, it is important that this not be confused with a “traffic fine”.

In terms of Section 20(2) of the AARTO Act, the Registrar may authorise the issue of an Enforcement Order if he has satisfied himself that both, an infringement notice and a courtesy letter have been served on the alleged infringer by the prescribed means. In the case of an infringement notice this could be service that occurs in person at the time of the alleged infringement or by registered mail if it is served after the fact and in the case of a courtesy letter, this must be served by registered mail. An enforcement order must also be served by registered mail.

The more recent licence renewal notifications contain a misleading statement which reads as follows:

” Your application for a new Driving Licence Card or PrDP will not be processed unless all Enforcement Orders have been settled and all penalties and courtesy letter fees for outstanding Infringements are settled. Visit www.aarto.gov.za“

While the first part of the statement is true, the second part of it is untrue and is used by licensing authorities to mislead people into believing that they are compelled to settle ALL outstanding infringement notices including but not limited to the illegal infringement notices the JMPD issued from 1 June 2010 to 21 December 2012. The findings of the Public Protector on this issue was that the JMPD violated the provisions of the AARTO Act and as a result, the improperly served infringement notices were “irregular” and amounted to maladministration.

Motorists are advised to look closely at the part of this notification to see if an Enforcement Order has been issued against their particulars. If it says “Enforcement Order outstanding: No/Nee” and a licence disc is not automatically printed, motorists should ask for a R114 eNaTIS statement to determine whether they have outstanding licensing fees or penalties owing on other vehicles registered in their name, or a warrant of arrest issued against them by courts in the jurisdictions outside of the operational areas of the Johannesburg and Tshwane Metro Police Departments.

Licensing authorities have become fond of preying on the ignorance of the average motorist who does not know and/or understand the legislative provisions that allow blocking of licensing transactions. They also appear to be of the opinion that traffic fines are somehow excluded from the presumption of innocence until guilt is proven which is enshrined in Section 35 of the Constitution.

The media release by the RTIA should be viewed as a statement by the RTIA that they are going to resume following the legislated provisions of the AARTO Act and nothing more. Motorists who ignore infringement notices issued against their names are doing themselves no favours and would be better advised to deal with their traffic fines as quickly as possible when they receive them.

Admitting guilt and paying a traffic fine, whether it is issued under the AARTO Act or the Criminal Procedure Act is ONE of the options but it is not the only one. Any person has the unalienable right to be presumed innocent until proven guilty and is fully entitled to mount a defence against any accusation of violation of any law – including traffic infringements/offences.

The RTIA is also tasked with EDUCATING people about the AARTO Act, but as yet, almost 7 years into the so-called “pilot phase” of the implementation of the AARTO Act, it has done very little to educate motorists and this is very sad indeed.

Anyone who wishes to educate themselves on the provisions of both, the AARTO Act or the Criminal Procedure Act is welcome to visit JPSA’s dedicated AARTO website at www.aarto.co.za. This must not be confused with the RTIA’s AARTO website is located at www.aarto.gov.za which does not present any of the abuses that have been perpetrated by authorities operating under the AARTO Act.

Howard Dembovsky

National Chairman – Justice Project South Africa (NPC)

Justice Project offers Clarification on unpaid traffic fines

Justice Project notes with concern e-toll threats by Sanral despite it being “sub-judice”

Justice Project South Africa has noted that SANRAL has again deployed its Chief Financial Officer; Ms Helga Mulder to threaten motorists with prosecution for the non-payment of e-tolls, despite the fact that e-tolling is currently under review by the Gauteng Provincial Government.

An article which appeared on Moneyweb on Monday 27 October 2014 bears testimony to the mechanics SANRAL intends using in furthering these criminal prosecutions, which it has waited for more than 7 months after the first prosecutions should have begun in April 2014. SANRAL has thereby created an enormous amount of prejudice, both in the monies allegedly outstanding to it and the quantum of individuals that will have to be prosecuted for non-payment of e-tolls.

On 1 September 2014, JPSA presented its submission to the Gauteng e-tolls review panel, warning of the socioeconomic disaster for South Africa as a whole that will ensue out of successful criminal prosecutions for non-payment of e-tolls but it would appear that SANRAL doesn’t much care what happens to the economy of South Africa if they are successful in creating a high volume of artificial criminals. It is still somewhat debatable whether SANRAL will be successful in prosecuting cases of the non-payment of e-tolls, but only a court will prove whether they will or will not.

The 2 cases currently undergoing prosecution must not be confused with prosecutions for non-payment of e-tolls, despite the fact that SANRAL has chosen to conflate these 2 cases with fraud charges applicable to e-tolling. Falsifying and defacing number plates are criminal offences under the National Road Traffic Act. Falsified number plates would ordinarily be prosecuted under the criminal charge of fraud, with charges under the National Road Traffic Act forming alternative charges.

The case of the former Deputy Chief of the Tshwane Metropolitan Police Department, Ndumiso Jaca, who fitted the same false number plates to a BMW Z4 and a Harley Davidson motorcycle which was instituted in 2011 is still ongoing. This matter is being heard in the Pretoria Regional Magistrates Court; the same court that the matter against Dr Stoyan Hristov Stoychev is being heard.

When it comes to the prosecution of motorists for the non-payment of e-tolls, the matter is not nearly as clear-cut as someone falsifying or defacing number plates and prosecuting the 2 clearly criminal matters cited by SANRAL is a far cry from prosecuting hundreds of thousands, if not over a million individuals for non-payment of e-tolls.

If SANRAL is planning to violate the Constitution by selecting a few “choice matters” to prosecute in the hope that they can scare others into submission, they need to be aware of the fact that this will not simply be overlooked. If they are successful in prosecuting large volumes of e-tolls “offenders”, they will create an environment of unemployable artificial criminals and will, as a result, cripple the economy of South Africa.

JPSA takes a very dim view of the repeated threats of prosecution by SANRAL, despite the fact that a supposedly democratic process is currently underway. In our view, this acutely demonstrates the fact that neither SANRAL nor the Department of Transport are in any way interested in listening to what citizens, political parties and other organisations think and have absolutely no intention of deviating from their plans to persist with e-tolls, regardless of whether they are efficient in getting the job done or not.

Best Regards,

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Howard Dembovsky

National Chairman – Justice Project South Africa (NPC)

Justice Project notes with concern e-toll threats by Sanral despite it being “sub-judice”

Is Justice for Kevin Ward, Jr. Justice for Tony Stewart?

Grief makes you do—and say—things you may well not otherwise. So do lawyers. Shortly after an Ontario County, New York, grand jury declined on Tuesday to charge Tony Stewart in the death of Kevin Ward, Jr., the 20-year-old sprint-automobile driver tragically killed when he walked into the path of Stewart’s vehicle on August 9, the Ward loved ones issued this statement:

“Our son got out of his auto throughout caution although the race was suspended. All the other autos have been minimizing speed and not accelerating except for Stewart who intentionally attempted to intimidate Kevin by accelerating and sliding his auto towards him causing this tragedy.

“The concentrate ought to be on Mr. Stewart and not my son. This matter is not at rest and we will pursue all remedies in fairness to Kevin.”

With criminal charges having now been ruled out, this can only be interpreted as an announcement of intent to file a wrongful-death civil lawsuit against Tony Stewart.

It’s indisputable that an upset Ward climbed from his disabled car soon after he hit the wall of the track in Canandaigua, New York, where he and Stewart were competing in an Empire Super Sprint series race. Stewart’s car had slipped higher in the corner, pinching Ward into the wall.

An naturally angry Ward stalked toward Stewart’s vehicle, nevertheless traveling at maybe 40 mph beneath the caution flag, and Stewart’s appropriate rear tire hit Ward. In Ontario County, a grand jury of 23, presented with the proof, voted in majority to “no bill” Stewart, which means they found insufficient evidence to indict him. All of this was integrated in District Attorney Michael Tantillo’s press conference on Tuesday, and none of it was unexpected.

This was, although: Tantillo said that a toxicology report on Ward “indicated [that] at the time of operation, he was under the influence of marijuana” and that “the levels that were determined had been sufficient to impair judgment.”

Probably this does not totally explain why a young driver not previously recognized as a hothead would climb from his car and confront yet another driver, at speed, more than a comparatively minor accident—it seems Ward could have changed his flat correct rear tire and continued, and some experienced dirt-track drivers have viewed the now-infamous video and recommended Ward should have backed off, turned low, and driven back beneath Stewart’s vehicle. But rather than the need to explain why a driver would climb out of his auto, the question is now why a driver would climb into a 700-hp dirt-track sprint auto beneath the influence of marijuana. They’re hazardous race automobiles, a point driven residence by the death these days of a sprint-vehicle driver during practice for a race in Wisconsin.

Specifically how the Ward household and their attorneys program to make their case is unclear. Several tracks and sanctioning bodies, which includes NASCAR, rapidly enacted guidelines prohibiting a driver from leaving a disabled vehicle on a still-active track—except, of course, in an emergency, such as a fire—until security crews have arrived and taken manage. Therefore it would be tough to suggest climbing from a vehicle and walking toward a moving race automobile, although not especially prohibited by the track guidelines at the time, is an acceptable concept.

The statement suggests “all the other vehicles” have been capable to miss Ward, Jr., but the video shows that only one particular had to miss him, and Ward wasn’t functioning his way into the path of that distinct auto. And to suggest that Stewart “was accelerating and sliding his car” toward Ward would seem to meet the common of at least negligent homicide, and the grand jury evidently did not uncover adequate proof that Stewart had potentially committed such a crime.

To numerous, it appears that still-grieving parents are unwilling to accept that their son primarily triggered his personal death. Or that there’s an attorney involved properly aware that Stewart has pocketed well over $ 100 million in NASCAR race winnings alone and that he holds a number of other assets.

New York is a “Pure Comparative Fault” state, which means that a plaintiff’s “damages will be lowered by their own liability, but not barred fully.” Which is to say that even if a judge or jury finds Kevin Ward, Jr., 95 percent liable for his own death, they could still locate Stewart 5 % liable.

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And if the person against whom these damages are assessed has a lot of funds, 5 % of that can nevertheless be a lot of income. In this sense, it is feasible that Ward, Jr.’s family could get the vindication they seek.

Is Justice for Kevin Ward, Jr. Justice for Tony Stewart?