Whilst Section 65 of the National Road Traffic Act makes it an offence to operate a motor vehicle whilst under the influence of alcohol or a drug having a narcotic effect, nowhere in the Act is it prescribed that police must have a blood sample taken if it is suspected that someone is under the influence of alcohol.
It is most often argued that a person who has been injured in a collision has the right to treatment, which trumps the State’s right to acquire a blood sample for driving under the influence of alcohol. It is also often argued that if the injured person has been treated with an intravenous drip of any kind that this will contaminate a blood sample. These are nonsensical arguments in the case of alcohol since ethyl alcohol will not be detected after analgesics or other medication has been administered and drawing a 100ml sample of blood is hardly life-threatening.
Another excuse which is used is that a blood sample may not be taken unless a person is under arrest. The problem appears to arise from the reluctance of police to place a person under arrest whilst they are injured as a result of a road traffic collision because they would then have to arrange for that person to be held in a prison ward or placed under guard whilst in hospital.
It is my view that this is a misinterpretation of the Criminal Procedure Act, since Section 37(2)(b) thereof says “If any registered medical practitioner attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant at any later criminal proceedings, such medical practitioner may take a blood sample of such person or cause such sample to be taken.”
This said and in the extremely limited context of the statement attached to the email received, once a period of two hours has elapsed from the time that the crash occurred, a blood sample may not be used in prosecution thereafter. I would therefore suggest that there is little that you can do, apart from lodging a complaint with the SAPS Centre for Service Excellence.
It is also my view that both police and traffic officers do not take driving under the influence of alcohol nearly seriously enough and unfortunately, the absence of a definitive requirement in the National Road Traffic Act for a blood sample to be taken from all drivers involved in collisions where any person is injured is not conducive to the battle against intoxicated driving.
National Chairman – Justice Project South Africa (NPC)