Legislation made four decades ago on “smelling of liquor”: erroneous in the context of current scientific knowledge

Abstract

Science has evolved radically during the last few decades. Therefore, certain legislation made based on the scientific knowledge of a particular era, should be reviewed in the context of new knowledge in the field of science. Section 11 of the ‘Offences committed under the influence of liquor (special provisions) act no. 41 of 1979’ states that ‘A person shall be presumed to be under the influence of liquor if at or about the time of the commission of the act he is smelling of liquor …. unless evidence to the contrary has been adduced.’ An endorsement to the presence of breath smelling of alcohol by the medical expert in the Medico-Legal Examination Form could lead to a conviction under this act. Ethyl alcohol is almost odourless and its smell is due to the presence of volatile substances called congeners produced simultaneously during the process of fermentation of ethyl alcohol. Therefore, the odour of alcohol frequently detected on people after consumption of alcoholic beverages is not due to alcohol, but to by-products of alcohol manufacture known as congeners. In addition, this odour may persist in the tissues for several hours even after the alcohol has been eliminated from the body. Therefore, the legal presumption that alcohol is present in blood, based upon the smell of liquor is erroneous. Conviction upon smelling of liquor should be stopped with immediate effect and the said legislation should be amended. Further, the Medico-Legal Examination Form should also be amended in this regard.