Being arrested for drunk driving is frightening. One moment you are at a roadblock; the next you are in the back of a police vehicle on the way to have blood drawn, facing a night in the cells and a criminal charge. Many people make the situation worse by not knowing their rights or by trying to resolve the matter quickly without advice.
The law may also become stricter. In September 2026, the Minister of Transport announced that the Department of Transport is preparing amendments to the National Road Traffic Act to introduce a zero blood alcohol limit for all drivers, with Cabinet approval targeted for the end of 2026. That proposal is not yet law, but it signals tougher enforcement ahead, particularly over the festive season.
This article explains the current law, what happens after an arrest, and the options available to an accused person.
The offences
Section 65 of the National Road Traffic Act 93 of 1996 (NRTA) creates several related offences. It is an offence to drive, or to occupy the driver’s seat of a vehicle with the engine running:
- while under the influence of alcohol or a drug with a narcotic effect;
- with a blood alcohol concentration of 0.05 grams or more per 100 millilitres of blood; or
- with a breath alcohol concentration of 0.24 milligrams or more per 1,000 millilitres of breath.
For drivers who need a professional driving permit, the limits are much lower: 0.02 grams per 100 millilitres of blood and 0.10 milligrams per 1,000 millilitres of breath.
The “under the influence” offence does not depend on a reading. The state may rely on evidence such as the manner of driving, slurred speech or the smell of alcohol, often supported by a doctor’s or nurse’s clinical observations.
What happens at the roadblock and after arrest
Police officers may require a driver to undergo a breath test. A roadside screening device gives an indication only. If it suggests you are over the limit, you will usually be arrested and taken either for an evidentiary breath test on an approved machine or to have a blood sample taken by a medical practitioner or registered nurse.
Refusing to give a breath or blood sample is itself an offence. Police may also obtain a blood sample without consent under the criminal procedure rules. Cooperation, while asserting your rights, is generally the sensible course.
After the sample is taken, you will usually be detained. You have the right to remain silent, to be told why you are arrested, to contact a legal representative, and to be brought before a court within 48 hours. In many drunk driving cases, the police can grant bail at the station, which avoids a longer stay in the cells. You will then be given a date to appear in the Magistrates’ Court.
The court process
At the first appearance, the matter is often postponed. Where a blood sample was taken, the prosecution must wait for the forensic laboratory to analyse it and issue a certificate of the result. Backlogs at state laboratories have historically caused long delays in some cases.
Once the evidence is available, the accused can plead guilty, enter into a plea and sentence agreement with the prosecution, or plead not guilty and go to trial. Possible defences depend on the facts and may include:
- whether the blood or breath sample was taken within the required time and by an authorised person;
- whether the breath testing device was approved, calibrated and operated correctly;
- whether the chain of custody of the blood sample was properly recorded; and
- whether the accused was in fact the driver.
Every case turns on its own evidence. A defence that looks technical can be decisive, but only if it is raised properly and supported by the record.
Penalties and other consequences
A conviction under section 65 can lead to a fine or imprisonment of up to six years. Sentences depend on factors such as the alcohol reading, whether there was an accident or injury, and whether the accused has previous convictions. First offenders without aggravating features often receive a fine or a suspended sentence.
The court must also consider the driving licence. The NRTA provides for suspension of the licence on conviction, with longer minimum periods for repeat offenders. The court may decide not to suspend the licence if the accused presents evidence that justifies this, so preparing that evidence before sentencing is important.
Other consequences include:
- a criminal record, which can affect employment, travel and visas;
- loss of a professional driving permit and possibly a job;
- insurance claims being rejected, as most motor policies exclude cover where the driver was over the legal limit; and
- civil liability if anyone was injured or property was damaged.
In some circumstances, a criminal record for a lesser sentence can later be expunged after a waiting period. See our article on criminal record expungement.
What to do if you are arrested
- Stay calm and courteous. Do not argue with officers or try to negotiate on the spot.
- Do not refuse a test. Refusal is a separate offence.
- Exercise your right to silence. You do not have to explain how much you drank.
- Ask to contact an attorney. Early advice helps with bail and protects your position.
- Write down the details afterwards: times, places, who took the sample and what was said.
- Keep your documents, including the bail receipt and notice to appear.
- Do not plead guilty or sign anything at court before taking advice.
How O’Reilly Law can help
We assist clients charged with drunk driving and other traffic-related offences, from bail at the police station to representation in the Magistrates’ Court. We review the state’s evidence, advise on plea options and defences, negotiate with prosecutors, and present evidence in mitigation and on licence suspension. We also advise on expungement applications and related civil and insurance issues.
Arrested or charged with drunk driving? Contact us for confidential advice as early as possible.
Related reading: Your rights during arrest and criminal investigation · Criminal records and expungement
This article is general information and not legal advice. Correct as at October 2026.