Consistent appeals by alcoblow convicts appear to have dealt a blow to traffic police who’d made a habit of levelling charges on motorists for failing to meet some calibration marks on the (un)popular gadget.
Judge Mumbua Matheka ruled that police will have to prove, beyond the alcoblow marks, that motorists they arrest over drink driving are “too intoxicated to control a vehicle.
”The verdict by Justice Matheka buttresses another verdict by Kiambu Magistrate Brian Khaemba who ruled that driving while drunk was not in itself a traffic offence unless authorities demonstrate the driver was not in control.
Lady Justice Matheka made the decision in a successful appeal by a motorist, George Wambugu, who challenged a Sh100, 000 fine slapped by a magistrate’s court for confessing to have been caught drunk behind the wheel.
Wambugu was arrested on January 1, 2018 at mid-day at King’ong’o along Nyeri- Nyahururu road. He was going home after partying all night while ushering the New Year.
When his breath was tested his blood alcohol concentration was found to be 29 micro grams in 100 millilitres of breath, beyond the prescribed limit of zero micro grams in 100 millilitres of breath for PSV drivers.
He was taken to Kiganjo Police station and subsequently charged before the lower court.
The officer who arrested him testified that he smelt alcohol which prompted the police to carry out the alcoblow test. The problem is that they did not indicate what level of intoxication he had.
If the alcohol level ranges between zero and 0.29 on the calibrator that means that one can safely drive.However, for PSVs, traffic law requires that one should not take alcohol and drive-the test result should be zero.
On the other hand, those driving personal vehicles should have 0.35 micrograms as the maximum intoxication.
“The prosecution only produced the Alcoblow count. Neither was any evidence produced to show that the appellant was incapable of controlling the said vehicle,” ruled the judge.
She also appeared not comfortable with the choice police charge particulars of ‘vehicle appeared to be driven haphazardly’.
“What does that even mean in reference to driving? Was it driven or it appeared to be driven?” she wondered.
A chart released by National Transport and Safety Authority (NTSA) last year indicate that anyone who has Blood Alcohol Concentration (BAC) raging between 0.3 and 0.5 cannot fully control a vehicle.
“From the record it is clear that the appellant’s plea was that yes he had taken alcohol the previous night hence smell in his breath and the Alcoblow reading. Merely having alcohol in your system is not an offence,” she ruled while quashing the sentence.
“The offence crystallizes when you cannot control the vehicle you are driving”