The Court of Appeal has outlawed traffic regulations that criminalise drunk-driving. The Breathaliser Rules do not create an offense independent of Sections 44 and 45 of the Traffic Act, the court ruled Friday.
“No one can be charged under Rule 3(1) of the Breathaliser Rules. To that extent, it does not reinforce the provisions of Section 44 (1) of the Trafic Act as was intended,” said justices G.B. Kariuki, Festus Azangalala and Fatuma Sichale.
“As the need to prohibit drunk-driving is still dire, and this matter being of great public interest, no doubt the authorities will move with quick dispatch to remedy the position,” they said.
“Although the enforcement of the traffic Breathlyser Rules 2010 is part of the lawful duty of police to detect crime, they were badly drafted and must give way to the Traffic Act,” the judges said.
In the case, Reminisce Sports Bar Limited moved to court against the Cabinet secretary Ministry of Roads, National Transport Authority (NTSA) and others saying that the alcoblow rules have adversely affected the business because of dwindling number of customers on account of fear of being arrested by police for drunk-driving.
The night club and entertainment facility located on Langata Road in Nairobi county claimed that the alcloblow rules were void and inconsistent with Article 94(5) of the Constitution of Kenya 2010.
The owner of the facility in his affidavit argued that the minister has no powers to prescribe the use of the breathalyzer and limits of alcohol consumption. The owner of the bar, Kariuki Ruitha, faulted the police saying that the requirement to supply specimens of breath before arrest on reasonable suspicion of having committed a traffic offense is illegal.
He submitted that the use of road blocks by the police to subject motorists to breath tests is unreasonable and violates the rights and freedoms of the motorists.
The respondents in their submission said that driving under the influence of alcohol is an offense under the Traffic Act adding that the breathalyser is intended to assess the level of intoxication to determine the motorist’s capacity to control driving.