No more ‘Blowing of Alcohol’ as court rules alcoblow illegal
The Court of Appeal has ruled that the Traffic Breathylser commonly known and Alcoblow were badly drafted and, therefore, do not create an offence.
“No one can be charged under Rule 3(1) of the Alcoblow Rules,” the court ruled.
The three-judge bench led by Justice GBM Kariuki further ruled that the Alcoblow rules do not create an offence independent of Section 44 and 45 of the Traffic Act adding that the said rules are incapable of creating an offence.
“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,” court ruled.
In the case Reminisce Sports Bar Limited moved to court against the Cabinet Secretary Ministry of Roads, NTSA and others saying that the alcoblow rules have adversely affected the business due to dwindling members of customers on account of fear of being nabbed by police for drunk driving.
The Night Club and entertainment facility located at 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 said 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 offence is illegal.
He further submitted that the use of road blocks by the police to subject motorists to breath tests is unreasonable violates the rights and freedoms of the motorists.
The respondents in their submission said that driving under the influence of alcohol is an offence under the Traffic Act adding that the breathalyzer is intended to access the level of intoxication to determine the control l of the driver.
The court ruled that the argument that the rule create an offence does not hold true. The court further said that the ascertains that some motorist have a greater capacity for alcohol and may not be incapable of control of a motor vehicle even with the consumption beyond the prescribed limit does not hold water.
“The law is made for all without discrimination,” court ruled.
But in a quick rejoinder, NTSA said it would continue executing its mandate to keep our roads safe despite the court ruling.
In a statement Director General, Francis Meja, said driving under the influence of alcohol is an offense and those found culpable will be dealt with accordingly.