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Court decriminalizes drunk driving, sets free driver arrested under the influence

A Kiambu court has made a landmark ruling decriminalizing drunk driving. Bryan Khaemba, a senior resident magistrate at Kiambu Law Courts, while making his ruling on Friday in a traffic case against Michael Ngobe Mugo who was arrested and charged for drunk driving in May 2018, said that the police failed to show that the accused was drunk.

In the ruling the magistrate said that drunk driving is not an offence as long as the driver is capable of being in control of the vehicle and police can prove the person was incapable of controlling the car as a result of the alcohol.

The accused was faced with the offence of driving a motor vehicle under the influence of alcohol contrary to section 44 (1) of the Traffic Act which states:

(1) Any person who, when driving or attempting to drive, or when in charge of a motor vehicle on a road or other public place, is under the influence of drink or drug to such an extent as to be incapable of having proper control of the vehicle, shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to be imprisonment for a term not exceeding two years or both.

INFLUENCE OF ALCOHOL

The magistrate in his ruling wondered if the driver was under the influence of drink, or drunk, and if yes whether as a result of the drink or drug, he was incapable of having control of the vehicle.

“In the case, from the facts on the charge sheet and the evidence of the single witness for the prosecution, there is no evidence that the accused was not in proper control of the vehicle or was affected by the drink, if any,” the magistrate said in his ruling.

He added that all that was presented before him was that the accused was driving under the influence of alcohol, which in itself is not an offence.

“The police have been under a mistaken belief that being found driving while drunk per se amounts to an offence under section 44 of the Traffic Act. They are so wrong. There must be evidence that the drunk driver was in fact not having proper control of the vehicle,” added the magistrate.

Many motorists in the past have had to part away with heavy fines after being arrested and charged with drunk driving.