Alcoblow suit certified as urgent
An application by a Nairobi driver seeking to stop the use of breathalysers to arrest and fine drunken drivers has been certified as urgent.
Lady Justice Mumbi Ngugi directed the driver Mr Richard Ogendo to serve the Attorney General and the National Transport Authority, whom he has named as respondents, with the suit papers.
The judge directed the case to be mentioned on February 14 for directions.
Mr Ogendo claims that that the use of the breathalyser is unlawful because the rules governing its use were never tabled in Parliament as required by law.
Through his lawyer Mr Gitobu Imanyara, the petitioner says he has perused Parliamentary Hansard and has not found evidence of the rules or their drafts having been tabled before the National Assembly.
Further, he said 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 (Breathalyser) Rules, 2011 came into force.
The petitioner claims 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.”
Mr Imanyara said 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.
The petitioner said that as a Kenyan citizen, he has been concerned about the number of road accidents happening 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.
Alcoblow 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.