Zero-percent drinking and driving is coming. The law won’t care if you ‘aren’t drunk’

If you travel to (or indeed live in) some small towns without metro police, it would seem drinking and driving is a regional pastime. Drinking while driving is often seen as a joke and some people can even come across as completely sober eight beers in.

So when Pabi claims she “had drinks” and decided to drive, is the extent to which she was drinking legally relevant? For now, yes! A blood-alcohol level of 0.05% is the current limit, which will be dropped to 0% come June. However, the extent to which she was drinking is not the same thing as the effect the drinking had on her.

Let’s get one thing right. Anybody believing that setting any limit will stop alcohol-related road deaths is a fool. That does not mean that anybody thinking that such limits don’t empower police to protect our roads is not equally a fool.

So why 0.05%? Where does the number come from and is it medically accurate? In all likelihood, it probably is not. Very few things set in law have accurate measures, especially provisions that aim to target individuals using a broad stroke.

Take for example the right to vote. Kids under the age of 18 may be citizens but are not allowed to vote until they reach the age of 18. Does the law assume that by virtue of turning 18, one is simply significantly politically wiser than the day before? Certainly not. Can it be assumed, though, that generally 45-year-olds are better placed to make political decisions than eight-year-olds? Probably. So somewhere in the middle, one has to draw a pragmatic line to differentiate between generalised groups for the better of society.

The law actually allows for this in the Constitution, specifically the limitations clause which allows limitation of rights as long as certain criteria are met, and one such is that of “general application”. In other words, if the limitation can be generally applied instead of treading on the toes of a single, unjustifiable group, such limitation can be valid.

Our legal landscape is full of interesting principles, from pacta sunt servanda (“agreements must be kept” which often flies in the face of Ubuntu) huur gaat voor koop (lease trumps purchase), some of which beg to be tested against the Constitution. The law of general application, though, has been tried and tested and generally comes out tops.

This justifies that legally, the effect of Pabi’s alcohol intake is irrelevant. What is relevant is her blood-alcohol level and, while many may claim, to be “fine after [x] drinks”, being fine is not what the law seeks. It merely seeks to set a pragmatic universal limit across the board.

So how does this translate to June’s impending absolute zero law, and can it be fought? Conversation in pubs across the country, especially in dorpies where taxis aren’t readily available, will feature the lamentation of having to shift from brandy specials to coke zeros. Pubs the country over may lament the decreased sale of quarts. The law on this, however, is pretty solid.

Despite being in a liberal constitutional democracy, the rights of an individual still do not trump the need to be pragmatic in applying the law. As long as the state can prove some reasonable rationale behind the quantum of the limit, it can be justified under this principle.

There are a couple of responses to this limitation one could possibly offer. One could, for example establish a taxi service in a small dorpie. One could limit one’s drinking. One could adjust one’s drinking habits and form a group with a rotating designated driver.

One could also fight the power and go to court trying to convince some judges that the zero limit is overreaching. One would be hard-pressed to argue what essentially amounts to “let me drink and drive” though. But hey, if some people could convince the Constitutional Court to let them smoke dagga in peace and privacy, anything is possible.

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