Alcoblow headed for major legal tussle

The continued use of breathalyzer as a measure to contain drunk driving is headed for a major legal tussle.

A driver, Richard Dickson Ogendo has filed a case in court seeking orders that the rules governing its use are unconstitutional and should therefore be outlawed.

He said that the use of the breathalyzer is unlawful because the rules governing its use were never tabled in Parliament as required by law.

He said that with the help of his lawyer Gitobu Imayara, he perused Parliamentary Hansard in which debates of the National Assembly which also shows dates when papers are laid before the National Assembly are recorded, and has not found any evidence of the Rules or their drafts having been tabled before the National Assembly.

Further, that the constitution requires that in coming up with the regulations, the all-state organs, state officers and public officers should engage public participation but which was not done before the Traffic (Breathalyzer) Rules, 2011 came into force.

The petitioner also indicated that, “the Rules as published do not provide for the disposable mouth piece to be handed over to the person in respect of whom they have been used hence the chances for their re-use by another person are not eliminated.”

The evidence gathered by their usage thus violates the fundamental right guaranteed under the constitution which requires fair trial on the suspects. It can also expose the suspects to health concerns.

Lawyer Gitobu Imanyara also explained that the Rules violate the rights of the accused because it relies on evidence given by the suspect.

The constitution, he said, requires that an arrested person has the right not to be compelled to make any confession or admission that could be used in evidence against him or her.

“It is clear that the said regulations depend for their efficacy on evidence obtained from the driver under the 'breath test’ given by the driver.

However, we are saying that every accused person has the right to a fair trial, which includes the right to refuse to give self-incriminating evidence,” lawyer Imanyara.

Mr Ogendo, however, said that as a Kenyan citizen he has been concerned about the number of road accidents happening on the roads and the unacceptably high number of road users being killed, maimed or injured as a result of accident.

“I therefore fully support any lawful and legitimate measure by the people and authorities to address this nationally important subject matter. However, such measures being in accordance with the law,” Mr Ogendo. (READ: Bar owners now want alcoblow suspended - VIDEO)

In 2005, the Government introduced the use of alcoblow as a result of many deaths and accidents. It was however outlawed on hygienic grounds by the High Court in January 2006.

Later in 2011, the then Minister of Transport Amos Kimunya published the Traffic (Breathalyzer) Rules, 2011. The Rules remained dormant until early this year when the Kenya Police acting jointly with the National Transport and Safety Authority (NTSA) started implementing the same.

The offence of drunk driving carries a fine not exceeding Sh100, 000 or imprisonment for a term not exceeding two years.

Mr Ogendo has sued NTSA and the Attorney General.