A TECHNICAL loophole in the criminal law act has led to the temporary dismissal of breathalyser tests as evidence in drunken driving cases.
Namibian traffic departments have been instructed to ‘use blood sample kits for driving under the influence of intoxicating liquor as evidence in court until these issues are solved’.
According to a letter from the Windhoek Magistrate’s Court, drunken driving cases are being withdrawn as ‘magistrates are reluctant to accept the certificates [of the breathalyser test results] as evidence in court.’A source said this week that the issue is ‘entirely technical’ and the problem will be solved by employing a Namibian to calibrate the machines or by changing the relevant act.A drunken driving case heard in the Walvis Bay Magistrate’s Court last year was dismissed when the magistrate ruled that the breathalyser test did not constitute evidence in line with Namibian law. The legality of the test hinged on the fact that the Criminal Procedure Act requires that the breathalyser must be calibrated by a person employed by the Government or employed at the ‘South African Institute for Medical Research or any university in Namibia’.Currently, the breathalyser machines are calibrated by a South African company, which is ‘a statutory body established in terms of South African law, not our own Namibian law,’ the magistrate said.As a result, the magistrate ruled that ‘there is no evidence before the court that the result was properly calibrated … there is no evidence before the court that the result of the breath test was correct’.The Namibian quoted a source earlier this week who said ‘there is no problem with the machine’s readings. It’s a fantastic test with a hundred per cent accuracy. The problem is legal.’A local magistrate this week said that many magistrates do permit the breathalyser test results, especially in the case of a guilty plea.He said, however, that the test results could be legally disputed if the accused pleads not guilty, as ‘the act says that it should be a local person who should test the machine’.
