Here at AutoTrader, we do not recommend getting behind the wheel of any vehicle if you've been drinking. However, suppose you encounter an unexpected roadblock and have indulged in a few drinks. In that case, it's helpful to know what to do and what not to do to avoid unnecessary issues and complications.
After diving into the National Road Traffic Act and the Criminal Procedure Act, we bring you some helpful advice that may just save your bacon.
What you’re being charged with
South African law sets out two separate routes to a conviction.
- Under the influence: your ability to drive is impaired by alcohol or a drug with a narcotic effect.
- Over the legal limit: your alcohol concentration exceeds the prescribed limit, even if you “feel fine.”
In a bit more detail?
Under the influence is impairment-based: the state must show your ability to drive was affected by alcohol or a drug (slurred speech, poor balance, bad driving), and you can be convicted even if you’re below the limit.
Over the legal limit is a pure numbers case: a valid breath or blood result above the statutory limits (0.05 g/100 ml blood or 0.24 mg/1000 ml breath for most drivers; 0.02/0.10 for professional drivers) within two hours is enough to convict even if you felt fine.
Both fall under Section 65 and carry the same penalties.
First minutes: stop safely, be polite, say less
If asked to pull over, do so, hazards on, and wind your window down. Hand over your licence. Keep your hands visible and maintain a civil tone. You are allowed to be quiet: “I’ll cooperate with the lawful tests. I choose to remain silent and would like to speak to a lawyer.”
Or, try one of these:
- “I’ll provide my details and cooperate with the lawful tests. I don’t wish to make a statement, and I’d like to speak to a lawyer first.”
- “I’ll answer identification questions and comply with the process. I do not want to answer questions about the incident until I’ve consulted a lawyer.”
- “With respect, I’m exercising my constitutional right not to make a statement at this time. I’ll cooperate with lawful procedures.”
In other words, save the legal debate for a courtroom, not the shoulder of the N1.
The breathalyser and the two‑hour rule
Expect a roadside screening breath test. If it’s positive, you’ll be routed to an evidential breath test or a blood draw. Timing matters: if an official specimen is taken within two hours of the alleged driving, the result is presumed to reflect your level at the time you were driving, unless proven otherwise. Quietly note the time of the stop, the test, and the blood draw. And once you’re detained, don’t put anything in your mouth and don’t smoke or vape. Not even gum or water is allowed.
Don’t refuse a lawful specimen
Refusing breath or blood when lawfully requested is a separate offence. Blood must be taken by a registered nurse or doctor, not a police official. You may ask the practitioner to note the time of draw, that sealed kits were used, and that labels match your details. Be firm without obstructing. A refusal charge will only make your situation worse.
What to say (and what not to say)
At the roadside or station, you must identify yourself and hand over your licence. You don’t have to answer investigative questions that could incriminate you.
- Safe to give: your name, ID number, address and contact, plus your driving licence. Cooperate with lawful breath/blood tests.
- Not safe to volunteer: how many drinks you had, when you started or finished drinking, when you last ate, where you were drinking, how far you planned to drive, whether you “feel fine/tired,” or what meds you’re on.
A simple script works: “I’ll cooperate with the lawful tests. I choose to remain silent and would like to speak to a lawyer before answering questions.”
What not to sign (and what you can sign)
Those “little forms” are often warning statements or “your version” notes. They look harmless; they aren’t.
- Okay to sign: the notice that your rights were explained, a property inventory/receipt, and the bail paperwork/receipt if you’re granted police bail. These don’t admit guilt.
- DO NOT sign without a lawyer: any warning statement, any “your version of events,” any confession, and any admission‑of‑guilt fine. An admission‑of‑guilt fine is an instant conviction that gives you a criminal record.
Refusing to answer questions is not the same as denying a specimen. Stay quiet about the night, but cooperate with the test.
From roadside to charge office: the 48‑hour rule and bail
Here’s the full play‑by‑play from cuffs to courtroom, and what “48 hours” really means.
What happens immediately after an arrest
You’re taken to the nearest SAPS station and “booked in”: your details are recorded, your belongings are inventoried, a case number is issued, and you’re placed in a holding cell. This is pre‑trial detention, not a sentence. You’ll usually be in SAPS cells with other detainees (separate from sentenced offenders). You have the right to contact a lawyer and a chosen person, to receive medical attention if needed, and to conditions that respect your dignity. Use those rights calmly.
How the 48‑hour clock works
The clock starts at arrest. By law, you must be brought before a lower court as soon as reasonably possible, and not later than 48 hours after arrest. If the 48 hours expire after hours or on a weekend/public holiday, you appear on the next court day.
- Arrested Friday 22:00 → 48 hours ends Sunday 22:00 → courts closed → you must appear on Monday.
Until you’re released on bail or warning, you remain in custody (typically station cells). If bail is later refused in court, you can be remanded to a correctional centre (awaiting‑trial prison).
Can you get out before court? Yes; here’s how
- Police bail (section 59): a designated officer may grant bail at the station for many offences (often including drunk driving). You’ll get a receipt and a court date.
- Prosecutor‑authorised bail (section 59A): for some matters, a senior prosecutor can approve bail at the station.
- Release on warning/written notice (sections 72/56): less common for DUI but possible — you’re released with a date to appear, no money paid.
Practical note: stations may keep DUI arrestees until you’re sober enough to leave safely, even after bail is paid.
What if no one offers you bail at the station?
You’ll go to court within the 48‑hour framework. At first appearance, the magistrate informs you of the charge and your rights; bail is considered. For drunk driving, bail is usually granted unless there are red flags (prior no‑shows, outstanding warrants, unverifiable address, or other risks). If bail is set and paid at court, you’re typically released the same day. If refused, your lawyer can bring a formal bail application or appeal later.
Will you get locked up with “criminals” until court?
You’re detained with other pre‑trial detainees — people awaiting court, not yet convicted. Men and women are held separately; juveniles are separated from adults. If you aren’t released on police/prosecutor bail (or warning), you stay in custody until court, per the timelines above.
Money, paperwork and practicalities
Bail must be paid officially (station/court cashier). Get and keep the receipt. Ensure your belongings are correctly itemised on the inventory. Share your case number, station name and bail amount with your person on the outside so they can pay quickly if needed.
What can go wrong — and how to avoid it
- Missing your court date: your bail can be forfeited and a warrant issued.
- Signing the wrong document: don’t sign warning statements, confessions or admission‑of‑guilt fines without legal advice.
- Arguing the facts: provide ID details, cooperate with lawful tests, and save your version for your lawyer.
Professional drivers: stricter limits, higher stakes
If you drive for a living, your limits are lower: 0.02 g/100 ml blood and 0.10 mg/1000 ml breath. A conviction can put your Professional Driving Permit — and your job — on the line. One “quick one” may be too many in law.
Penalties and licence suspension if convicted
A conviction under the drunk‑driving provisions can bring a fine and/or imprisonment of up to six years, plus a criminal record. Additionally, a licence suspension is mandatory upon conviction: at least 6 months for a first offence, at least 5 years for a second, and at least 10 years for a third or subsequent offence. Courts may deviate only in exceptional circumstances after a formal enquiry.
Admission of guilt, fines, and criminal records
That “pay it and go home” admission‑of‑guilt fine is legally a conviction. You’ll have a criminal record that can affect your work, visas, insurance, and firearm licensing. Some records can be expunged after 10 years if you meet the criteria, but this process is not automatic and is not quick. Speak to a lawyer before you pay anything.
What to capture for your lawyer
- Times of the stop, the screening test, the evidential test, the blood draw, detention and release,
- Names and badge numbers of officers; name and registration of the practitioner,
- Device details and any serials or seal numbers shared with you,
- Copies or photos of the charge sheet, bail slip and any notices.
What if you can't use your phone or write anything down?
- Ask for copies and receipts: you’re entitled to paperwork like your charge sheet, bail receipt, and the property inventory for your belongings. If they won’t give copies, ask to read them and memorise the case number (CAS …), station name, and the officer’s details. Ask (politely) for the time to be written on any document you sign.
- Remember the key times with a simple mnemonic of 1 x S and 4 x B's: 1. stop → 2. breath → 3. blood → 4. book‑in → 5. bail. If you can only remember five moments, make it those. Glance at a wall clock if there is one. If you’re allowed a call, tell your person the current time and your location, so their call log becomes a time-stamped note.
- Use the station’s own books: the occurrence book (OB), detention/cell register, and property/exhibit register are official logs. Ask the officer to record important events (injury/medical request, refusal of copies, time of breath test departure/return). Ask for the OB entry number — you can give that to your lawyer later.
- Phone a friend (to be your pen): when you get to make calls, dictate the essentials to someone you trust: station name, case number, arresting officer’s name/badge, time of stop, time of breath test, time of blood draw, and any medical issues. Ask them to WhatsApp or email your lawyer immediately so there’s a timestamped record outside SAPS.
- Catch names: ask officers to show their name/badge tags and repeat them out loud — saying them helps you remember. Do the same with the healthcare practitioner’s name and the testing centre. The most important names you need to remember are: 1. The arresting officer, and 2. The practitioner who drew the blood.
- After release, your lawyer fills the gaps: defence attorneys can obtain the station detention register, OB entries, breathalyser printouts (with timestamps), calibration certificates, chain‑of‑custody records and the lab report during disclosure. Even if you couldn’t write a thing, the state’s own paperwork should carry the timeline, but don't bet your life on it.
What not to do
- Don’t try covert recordings in secured areas; you can make your situation worse.
- Don’t make up times. If you’re unsure, say “about”. Approximations still help your lawyer cross‑check against official logs.
- Don’t sign anything that looks like “your version” or a confession without legal advice. Receipts and inventories are acceptable; admissions are not.
Next steps if you plan to fight the case
DUI cases often turn on the process. A specialist will review calibration certificates, operator training records, two-hour timing documentation, chain-of-custody paperwork, storage temperatures, and observation evidence. Phone a DUI specialist early (in other words, a lawyer who has extensive experience in drunk-driving cases — preferably before you say or sign anything else.
Why you should ditch the ‘I could still be within the legal limit’ maths
Because it’s a guessing game, body mass, food, etc, and time all move the needle. One 340 ml beer may tip one driver over and barely nudge another. The safe rule is the boring rule: if you’re driving, don’t drink. If you’ve drunk, don’t drive.
Related: Drinking and driving: how much is too much?
The final word
This isn’t about cheating the system; it’s about not making a bad night worse. Be polite. Cooperate lawfully. Don’t consume anything while detained. Keep records. And let a lawyer do the arguing, in the right room.
Related: What you need to know if you get stopped at a roadblock this festive season
Legal disclaimer
This article is general information for South African motorists. It is not legal advice and must not be relied upon as such. Laws, regulations, court practice and penalties can change, and outcomes always depend on specific facts. While we have cross-checked against the National Road Traffic Act and the Criminal Procedure Act as of November 2025, we cannot guarantee completeness, accuracy, or ongoing currency.
Reading this article does not create an attorney–client relationship. If you are arrested or charged, seek advice from a qualified attorney or Legal Aid South Africa without delay. In any emergency or unsafe situation, prioritise safety and follow lawful instructions from officers.
To the maximum extent permitted by South African law, AutoTrader South Africa and the author accept no responsibility or liability for any loss, damage or consequences arising from reliance on this content. Nothing here should be read as encouraging unlawful conduct, evasion of law enforcement, or refusal of lawful breath/blood testing.
References and links to external sites are provided for convenience; we do not control or endorse their content and are not responsible for any changes or errors that may occur there. For official updates, consult the Government Gazette and applicable statutes.
