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Use Of Ungazetted Breathalyzer Leads To Acquittal

LEBOGANG MOSIKARE
FRANCISTOWN: The police have bungled a case in which they used an un-gazetted breathalyzer to test the breath of a person who they suspected was driving a motor vehicle while the amount of alcohol in his breath exceeded the prescribed limit.

This scenario emerged in a matter in which Freeman Mapukule had taken the Directorate of Public Prosecutions (DPP) to clarify two critical issues around the use of breathalysers within the context of the Road Traffic Act (Cap 69:01) of the Laws of Botswana. Giving judgement in the matter, Justice Lot Moroka said the first issue concerns the types of breathalyzers permissible under the Road Traffic Act in Botswana while the second is concerned with the law on the offence of Refusal/Failure to Provide a Specimen of Breath Contrary to Section 47 (5) of the Road Traffic Act.

“In this case, the Appellant was arrested by the Selibe-Phikwe police following an accident in which the motor vehicle he was driving collided with an electric pole and fence after he lost control of the motor vehicle. The police who attended to the accident formed the opinion that he was driving whilst under the influence of alcohol and asked him to accompany them to the police station for testing his breath for alcohol level. The accused agreed and upon arrival at the police station, the Appellant was duly warned that he was required to provide a specimen of breath into an alcometer referred to by the Police officers who gave evidence at trial as Intoximeter EC/IR serial number 012623,” said Moroka.

“The accused blew his breath into the Intoximeter but could not generate sufficient specimen for testing. Reasons for the failure are not specified in the record of proceedings from the lower court. Police then warned and cautioned him of the offences of failure to provide a specimen of breath and that of driving without due care and attention,” Moroka added.

Moroka went on: “He was taken before the Selibe-Phikwe Magistrate Court where he was tried and convicted of the two offences. He was duly sentenced to pay a fine of P 3 200.00 on the first count. He is appealing against the conviction on this count. The Appellant is appealing against the conviction on the grounds that the trial court erred in convicting him on the basis of a machine whose serviceability was never proven beyond all reasonable doubt…”

In all criminal matters conducted in Botswana, the State shoulders the burden to prove the guilty of the accused person beyond reasonable doubt, Moroka explained.

“Where as in this case, reliance is placed on evidence of generating instruments to prove the guilty of an accused person, the State bears a duty to prove that the instrument used to perform the breath test was sanctioned by law and the proper functioning or serviceability of the instrument,” Moroka elucidated.

He added that the State should prove that the Intoximeter CT/RS has been prescribed by the minister as permissible for use in Botswana for purposes of the Road Traffic Act.

“We have seen that in terms of section 47 (1), before any breathalyzer can be used in the enforcement of the Road Traffic Act, such must first be prescribed by the Minister.

If we retrace the step of breathalyzer application in Botswana backwards, we will arrive at Statutory Instrument No. 18 of 1993 by which Breathalyzers were for the first time introduced in Botswana.

The then section 46 A

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(1) of the Road Traffic Act for the very first time in Botswana made it lawful for a police officer to require any person who is driving or is in charge of a motor vehicle to provide a specimen of breath for analysis by means of a breathalyzer of a type prescribed by the minister. By this instrument, the minister prescribed the type of breathalyzers permissible for use in Botswana,” the judge added.

Narrating the history of the use of breathalyzer the judge said that Statutory Instrument Number 18 of 1995 created the first generation of breathalyzers permissible for use in Botswana.

“Pursuant to the powers given to him under section 47, of the Act, the Minister prescribed the type of breathalyzers permissible for use in Botswana in Statutory Instrument No.18 of 1995. As follows: Lion Alcometer S-D2, Intoxilyser 1400, Drager Alcotest 7110, Drager Alcotest 7310, Intoximeter and Intoximeter EC/IR (emphasis mine).”

In 2013, Moroka went on, the minister prescribed a new generation of breathalyzers permissible for use in Botswana.

“This is Statutory Instrument No 95 of 2013.  Section 2 of the Statutory Instrument provides that-for the purpose of section 47 of the Road Traffic Act, the breathalyzer which shall be used for the analysis of specimens of breath shall be any of the types of devices specified in the Schedule hereto: Alcometer, Intoxilyser, Drager Alcotest, Alco Sensor, Intoximeter, Lifeloc, RBT IV, Alcotech alert, Intox.”

“In this case, PW1 – Sergeant Phepheng told the court that the type of instruments used to test the appellant’s alcohol level was the Intoximeter EC/IR.

This type of breathalyzer does not form part of the list of breathalyzers No. 18 of prescribed for use by the Minister in terms of the Statutory Instrument. Therefore, in using the Intoximeter EC/IR, the police were using a breathalyzer not prescribed by the Minister. The act of testing the Appellant was therefore a nullity. The result can therefore not stand,” he stated. This point is dispositive of the appeal. However, there is need to speak with clarity on the offence of failure or refusal to Provide a Specimen of Breath contrary to section 47 (5) of the Act, Moroka further said.

“In circumstances where, there is a road accident with potential for injuries to the driver and passengers, it is preferable that the driver and passenger be taken to hospital for medical examination and where there is need of extraction of blood for alcohol testing.

In this case, the appellant attributes his inability to provide sufficient breath to health reasons. He did not refuse to provide a specimen of blood for alcohol testing. There is no evidence therefore that the failure to provide the specimen of breath was without reasonable excuse. The second count cannot stand.  In the final analysis, for the reason of the unlawful breathalyzer and the latter grounds the appeal ought to succeed,” Moroka clarified.

Moroka concluded: “The appeal against conviction succeeds in both counts and the following orders are hereby made: The conviction and sentence are hereby quashed and set aside in respect to both counts and the appellant is discharged and acquitted.” Kagiso Pogiso represented the appellant while Neo Machola appeared for the State.



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