Uhuru signs into law bill that returns breathalyser on Kenya’s highways

alcoblow test

A driver who refused to take an alcoblow test in Nakuru City is inside a police vehicle.

Photo credit: File | Nation Media Group

The return of the breathalyser on Kenyan roads is imminent after President Uhuru Kenyatta signed the Traffic (Amendment) Bill 2021 into law last week. Those found guilty of drunk driving risk fine not exceeding Sh100,000,  a two-year prison term or both.

“A person who, when driving or attempting to drive, or in charge of a motor vehicle on a road or other public place is under the influence of an alcoholic drink or a drug beyond the prescribed limits, shall be guilty of an offence,” it says.

Police are only waiting for the law to be published in the Kenya gazette before swinging into action.

A breathalyser measures how much alcohol is in the air you breath out. The new law uses measurements in breath, blood or urine.

It states that no driver should handle a vehicle if he or she has consumed alcohol in excess of 35 microgrammes in 100 millilitres of breath, 80 milligrammes of alcohol in 100 millilitres of blood and 107 milligrammes of alcohol in 100 millilitres of urine.

If the alcohol level ranges between zero and 0.29 on the calibrator, it means one can safely drive. Those driving private vehicles should have 0.35 micrograms as the maximum intoxication.

However, drivers of matatus and other public service vehicles are prohibited from taking liquor and their test result should be zero.

The amount of alcohol a driver takes to exceed or remain below these new limits will depend on many factors, including weight, age, sex, metabolism, diet, type of liquor and stress levels.

The MPs passed the bill to amend the Traffic Act of 2013 before they adjourned to proceed on recess on June 9 ahead of the General Election.

But a proposal seeking to clear ambiguities on the interpretation of what constitutes violation of speed limits was shot down.

The return of the breathalyser was the brainchild of Tiaty MP Kassait Kamket. The new law is an improvement of another following a court directive that declared the use of the breathalyser illegal in 2017.

While pushing for the enactment of the bill, Mr Kamket argued that the law as was then, contained subjective tests that were not easily implementable, especially with such phrases like “as to be incapable of having proper control of the vehicle”, in reference to a drunk driver.

“The amendment shall ensure this test be objective by providing for measurable and scientific applications such as prescribed limits to be provided in the regulations,” Mr Kamket said.

The use the breathalyser, also known as breath alcohol tester, by the multi-agency team of police and the National Transport and Safety Authority (NTSA) was outlawed in 2017 on the basis that the execution of the rules establishing its use was inconsistent with the Traffic Act.

Appellate Court judges GBM Kariuki, Fatuma Sichale and Festus Azangalala directed Parliament to review the law when a petitioner challenged the use of the gadgets. Before the ruling, the breathalyser had been in force for more than three years following its introduction in 2014.

The proposal to repeal section 70 (5B) of the Traffic Act to cure misinterpretations that have often seen violators of speed limits let off the hook, however, failed.

The section provides that a person who violates a speed limit prescribed for a road by more than 20km/h commits an offence and shall be liable on conviction, to imprisonment for a term of not less than three months or a fine of at least Sh20,000 or both.

Some individuals, especially those caught on the wrong side of the law, have interpreted the section to mean a person does not commit an offence unless the speed limit is exceeded by more than 20km/h.

The NTSA has previously argued that the section creates a minimum penalty for persons who violate the speed limit by more than 20km/h.

The driving licence of a person who has been convicted for the violation of a speed limit shall be invalidated for not less than three years if the violation of the limit is by more than 20km/h and it is repeated three or more times.

The requirement that a PSV driver undergoes testing after every two years to ascertain his or her competence has been repealed.

This means loss in revenue to the government in terms of the fees paid for the compulsory test.

Drivers and conductors of matatus and buses shall continue to wear special badges and uniforms prescribed by the Registrar of Motor Vehicles.

The drivers’ uniform shall be navy blue while the conductors’ is maroon.