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RTMC’s 7 days in jail before bail “proposal” absurd at best – JPSA

JOHANNESBURG – Since Sunday 4 November 2018, the media has been abuzz over the RTMC’s plans to introduce a “7-days’ in jail policy” before a person who stands accused of driving under the influence of alcohol, reckless or negligent driving, or speeding may apply for bail.

In the Sunday Times report which triggered the buzz, Advocate Makhosini Msibi is quoted as saying: “Above all, it must not be automatic, you must spend seven days [in jail] before you can bring the application for bail.”

So vociferous are Msibi’s absurd assertions that on page 5 of the RTMC’s “Revised Strategic Plan 2015 – 2020” (signed off by Dr Blade Nzimande), Msibi states that “One of the initiatives [of the RTMC] is to re-classify all road traffic offences to Schedule 5 of the Criminal Procedure Act (CPA)”. Simply put, this means that even a person who is arrested for parking their vehicle incorrectly should, in Msibi’s mind, be detained for seven days prior to being permitted to launch a bail application.

There is no provision whatsoever, in any South African law which authorises the South African Police Service to detain a person for seven days prior to bringing that person before a court. In fact, the Criminal Procedure Act expressly prescribes that every arrested person must be brought before a court within 48 hours of their arrest and the Constitution of the Republic of South Africa expressly forbids the apartheid era style of detention without trial that the RTMC clearly wishes to reintroduce into South African society.

This “proposal” is absurd at best and represents little more than a crude attempt by the RTMC to abuse the well-established and legally sound bail process in our criminal justice system. It should be treated with the contempt it deserves.

Listen into SAfm at 09:30 on Wednesday 7 November where Howard Dembovsky will be going head to head with the RTMC on this topic.

AARTO to face constitutional challenge

Numerous provisions of the Administrative Adjudication of Road Traffic Offences (AARTO) Act, as well as certain provisions of the National Road Traffic Act are unconstitutional and should be struck down. These are the fundamental assertions made in court papers filed in the North Gauteng High Court by Howard Dembovsky, chair of Justice Project South Africa last week.

Dembovsky has said that both sets of legislation simply presume guilt on the part of an accused person, circumvent key principles in criminal law and facilitate what he describes as being “grossly unjust measures to extract revenues, facilitated through the coercive practice of withholding licence discs and other documents from persons, regardless of whether they have been found guilty of an offence or not”.

“I am seeking to enforce of my individual constitutional rights,” said Dembovsky. “The fact that my rights and the rights of my fellow South Africans are shared through the Constitution, means that should I win this challenge, every single motorist in the country will also have their rights enforced”.

His affidavit, which can be viewed and downloaded at www.aarto.co.za lays bare how the AARTO Act was implemented almost solely to extract revenue from road users, with road safety hardly featuring in it at all. The AARTO pilot project, which was meant to last no more than 18 months, is currently in its tenth year of operation, and an Amendment Bill currently being processed by the National Council of Provinces seeks to further diminish the constitutional rights of motorists, even going so far as to altogether remove the right to a fair trial for traffic offences. Dembovsky hastens to add that he is not however challenging the AARTO Amendment Bill at this juncture, since it has not yet been signed into law. “That bridge will be crossed when, and indeed if we come to it,” he said.

When asked what he thought should replace the AARTO Act if he wins this court battle, he replied that government and the law enforcement community should simply obey the law and enforce laws within the prescripts of the law. “20 years ago, the Road Traffic Act was not much different to what the National Road Traffic Act is today, and it was successfully enforced using the Criminal Procedure Act,” he commented. “At that time, a South African’s risk of dying in a traffic crash was one-third what it is today. But as time has progressed and policing has become lazier and more revenue-centric, so too has a general breakdown in law and order, coupled with sharp rise in the fatalities on our roads followed,” he continued.

He said that there are ways that the application of the Criminal Procedure Act in relation to road traffic infringements could be improved, but that the fundamental issues of equality before the law, the right to a fair trial and the presumption of innocence were enshrined in the Constitution and justice system are still catered for in that legislation and therefore, the Criminal Procedure Act is and remains ideally suited to prosecuting road traffic offences and infringements. He described the AARTO Act as creating a parallel system that tries to operate completely outside of the framework of the rule of law, in the interests of expediency and not justice.

“It is time government sat down, breathed deeply, and asked the most important question: ‘How do we reduce road deaths?’” Dembovsky said. “Chasing revenue by enacting unconstitutional laws and abusing the provisions of others is not the answer. If government genuinely wants to implement a points-demerit system, then one can easily be incorporated into the National Road Traffic Act without the need to run roughshod over the constitutional rights of people,” he concluded.

He believes that he has an exceptionally strong case and “looks forward to arguing it before the court”.

The AARTO Amendment Bill, e-tolls and losing your driving licence

The recent media hype surrounding e-tolls and the AARTO Amendment Bill is somewhat misleading and needs to be clarified.

While it is true to say that under the current AARTO Regulations, drivers of operator-class motor vehicles could have their driving licences suspended for failing to pay e-tolls, if the points-demerit system was in force now, this is not true with respect to drivers of around 91% of the registered self-propelled vehicles in South Africa.

Please note: “RWC” means operator-class vehicles.

Even though it has not been promulgated yet, a 7 December 2015 draft amendment to the AARTO Regulations indicated the intention of the Department of Transport to dispose of the single demerit-point applicable to charge code 3821 in Schedule 3 of the AARTO Regulations.

Please note: “RWC” means operator-class vehicles.

It is little more than a play on words to say that “not paying your e-tolls is not a traffic infringement” and “instead counts as disobeying a road sign”.

The descriptive wording of charge codes 3820 and 3821 is “Failed to comply with the directions conveyed by a road traffic sign by using a toll road without paying the toll charge”. Therefore the underlying infringement is driving on a toll road without paying the toll charge. Whether that toll charge is payable at an ordinary toll plaza or arises from passing under an e-toll gantry is irrelevant since the SANRAL Act, which is road traffic legislation, contemplates both means of toll collection and creates a road traffic offence for not complying.

SANRAL has failed to issue even a single infringement notice and prosecute even a single person for failing to pay e-tolls since the inception of e-tolling in 2013. The singular conviction, by plea agreement, of Dr Stoyan Stoychev in 2015, for number plate fraud and evading e-tolls in the process, does not alter this fact.

Perhaps part of the reason for this phenomenon is that serving infringement notices in person or by registered mail is a costly affair. The AARTO Amendment Bill seeks to introduce “electronic service” which will save issuing authorities and the RTIA astronomical amounts of money. The Bill also seeks to remove the right of an alleged infringer to elect to be tried in court and in so doing, to be afforded their constitutional right to a fair trial. As a result, issuing authorities, including but not limited to SANRAL, would never have to prove their allegations, if the Bill is signed into law.

JPSA maintains that, despite the AARTO Amendment Bill reportedly having been scrutinised and certified by the State Law Advisors, it will fail to pass constitutional and other legal muster if it is signed into law. The e-tolls issue is a separate, but interlinked issue and is yet to be resolved.

Have your say: AARTO Amendment Bill hearings – NCOP Western Cape

JOHANNESBURG – It has come to the attention of Justice Project South Africa that the Western Cape Provincial Parliament is to hold public hearings on the AARTO Amendment Bill in Cape Town, starting next Thursday, 15 February 2018. These hearings form part of the process before the National Council of Provinces votes on the Bill, and motorists are strongly encouraged to take the time to participate in this process.

At this stage, JPSA is not aware of any scheduled public hearings in the other eight provinces, but we will keep an eye on things and will notify the public if or when we are made aware of other events.

The AARTO Amendment Bill seeks to amend many of the current provisions of the AARTO Act, in preparation for the national implementation of the AARTO Act, whereafter the long awaited points-demerit system is expected to be introduced.

“This may sound like good news to law-abiding motorists who have grown tired of the lawlessness on our roads, but there are numerous provisions of the currently applicable AARTO Act which, along with the proposed amendments contained in the AARTO Amendment Bill will literally make your hair stand on end,” says JPSA’s chairperson, Howard Dembovsky.

“For example, the AARTO Act does not interest itself with whether you are guilty or innocent of the infringement with respect to which a traffic officer issues an infringement notice to you”.

Whereas motorists are currently permitted to elect to exercise their constitutional right to a fair trial if they believe that they are not guilty, the AARTO Amendment Bill removes this “option” and replaces it with a Tribunal which may only be approached if one makes an unsuccessful written representation. Upon such an approach, which must be made within 30 days of the adverse outcome of a representation, the fee prescribed by the Minister of Transport must be paid to the Tribunal, for it to review the decision of a representations officer.

This is by no means the sole provision in the AARTO Amendment Bill that rings the wrong kind of constitutional bells and the Bill and the existing AARTO Act are full of provisions that JPSA believes will fail to pass constitutional muster.

The public hearings in Cape Town are scheduled to be held as follows:

DATE

TIME VENUE AREA

Thursday
15 February 2018

17:00 Bellville Civic Centre
Voortrekker Road

Bellville

Monday
19 February 2018

17:00 New Hall
Solomon Tshuku Avenue
Site C

Khayelitsha

Tuesday
27 February 2018

17:00 Mossel Bay Town Hall
Marsh Street

Mossel Bay

Wednesday
28 February 2018

17:00 Moffat Hall
Dahlia Street
Mount Pleasant

Hermanus

Thursday
1 March 2018
17:00 Kathy Johnson Multipurpose Centre
Bloekom Avenue

Clanwilliam

 

Written submissions will also be accepted and must reach Ms Shareen Niekerk (sniekerk@wcpp.gov.za), Committee Coordinator, fourth floor, Provincial Legislature Building, 7 Wale Street, Cape Town, by no later than 12:00 on Friday 30 March 2018.

You may download the AARTO Amendment Bill, 2015 as well as the currently applicable AARTO Act from http://www.wcpp.gov.za/ncop-legislation.

Below is the invitation sent out by the Western Cape Provincial Parliament’s Standing Committee on Transport and Public Works:

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Scareware roadblock “warnings”

JOHANNESBURG – So-called “warnings” regarding roadblocks to be instituted by unnamed traffic law enforcement authorities have again been doing the rounds on social media, the most recent of which reads:

“Road block dates Dec 16 , 23. 30. All Friday’s. And through to Sat mornings. No mercy. One beer is over the limit. Jail till hearing Monday’s. Car will be impounded. If arrested. Min R 2000.00 to retrieve car if car is in road worthy condition. No outstanding fines and license up to date. Pass the word”.

This so-called “warning” is remarkably similar to another viral falsehood which did the rounds on social media around this time last year, claiming to have been authored by a political party councillor, wherein similar outlandish claims were made.

The threats which have originated from entities like the Road Traffic Management Corporation regarding extended periods of detention before trail and so-called “rescheduling” of this offence to Schedule 5 of the Criminal Procedure Act merely serve to exacerbate this disinformation and have clearly had a limited effect in deterring “drunken driving”.

Quite aside from the truly appalling grammar employed in authoring this particular scareware, many of the claims in it are without substance and are apparently designed to scare would-be “drunken drivers” into not taking a chance on the days in question by spreading garbage. Whilst it most certainly does not constitute “defeating the ends of justice” as has been claimed by some social media commentators, it can only have a limited effect since people have become desensitised to threats which generally amount to nothing.

Everyone should know by now that driving under the influence of intoxicating substances (alcohol or drugs) is extremely dangerous and accounts for a high percentage of road traffic injuries and deaths. No-one should be more concerned about being caught and prosecuted than they should be over causing a collision in which they, someone they care about or any other person could be injured or killed, but the fact still remains that driving under the influence of alcohol or drugs is one of the most serious road traffic offences anyone can commit.

Particularly during the festive season, road traffic law enforcement authorities step up their efforts regarding driving under the influence of alcohol and in so doing seek to arrest and prosecute those who simply refuse to heed warnings and/or feel that the facts of human biology and toxicology do not apply to them.

Contrary to popular belief, alcohol enforcement roadblocks and other operations do not only take place over weekends and public holidays. In the Western Cape “Random Breath Testing” has been in operation since July 2017 and in Johannesburg, daily alcohol enforcement operations take place in roadside stops all over the City. Both happen on a 24/7/365 basis. Encouragingly, other traffic law enforcement authorities are adopting a similar approach.

The days, times and locations of such operations cannot be “leaked” since they are planned and executed on the fly and have the effect of not causing huge traffic jams which tend to cause motorists to take a different route when the locations of massive roadblocks make their way onto live social media platforms like Twitter or even onto GPS navigation applications and devices which employ “live traffic” information.

The take-home message for all motorists should be that driving under the influence of an intoxicating substance is not only against the law, but is extremely dangerous and it is not worth taking a chance and trying to beat the odds. If those who can’t resist the temptation to spread “warnings” on social media really want to have a positive effect, then perhaps they should consider spreading this message:

“Driving under the influence of alcohol or drugs is extremely dangerous and could easily lead to injury or death. Alcohol enforcement operations can and do take place anytime, anywhere and if you are caught, you will face prosecution which will earn you 10-year criminal record if you are convicted. Be sensible. Don’t do it!”

Example social media messages:

Landmark Judgment: Private Estates may NOT enforce road traffic laws

Private estates may not enforce road traffic law. This was the finding of the KwaZulu-Natal High Court in a long-running case in which Niemesh Singh, a resident of Mount Edgecombe Country Club Estate, claimed that speed trapping in the estate was unlawful.

The judges in the case said that the estate had not taken the steps required by the National Road Traffic Act to erect road signs, and also said that enforcement may only be carried out by a peace officer.

“This brings to an end the long-held view of private residential estates that they may set speed limits and erect road signs without abiding by the restrictions of the National Road Traffic Act,” said JPSA Chair, Howard Dembovsky. “It also ensures that enforcement can only be carried out by a traffic officer who is authorised by law to do so.”

Dembovsky said that the roads within the vast majority of gated communities fall directly within the definition of a “public road” as is defined in the National Road Traffic Act and only duly authorised persons and/or bodies may erect road traffic signs.

Where a private estate wishes to erect its own road traffic signs,  authorisation may only be granted by the Minister of Transport, the MEC, or a person who is delegated such powers by the Minister or the MEC.

Dembovsky said the judgment confirmed everything JPSA had been saying for years with respect to the illegality of people such as security guards setting up speed measuring equipment, stopping alleged infringers and issuing them with fines which the estates in question then go further to stipulate must be dealt with on a “pay now, query later” basis, failing which some estates will even go so far as to unlawfully deny residents access to the estate in question.

Also included in the judgment was the striking down of the “domestic rules” of the estate which could only be likened to the curfews and pass laws imposed during the apartheid era. Amongst these “rules” were provisions such as only allowing domestic workers to walk on the streets in the estate between 06h00 and 18h00, compelling them to make use of designated bus stops, etc.

“JPSA wishes to congratulate Mr Singh  for their sheer persistence and courage in standing up to the private estates which have  set themselves up as enclaves operating outside the law and Constitution,” Dembovsky concluded.

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71 percent increase in vehicle licensing transaction fees must be explained

On 6 October 2017, Transport Minister Joe Maswanganyi published the increased transaction fee which will be charged on eNaTIS vehicle licensing transactions applicable with effect from 1 February 2018, in Government Gazette 41170. The transaction fee is charged, over and above the actual vehicle licensing fee which goes to the registering authority, and is payable to the Road Traffic Management Corporation.

The increase of R30 per transaction equates to a whopping 71.43% increase in this transaction fee, raising it from R42 per transaction to R72 per transaction. In the previous year, the former Minister of Transport, Dipuo Peters increased this transaction fee from R36 to R42 per transaction, an increase of 16.67%.

The current reported inflation rate in South Africa is 4.8% as at August 2017 and therefore, the latest published transaction fee exceeds the current inflation rate by almost fifteen times.

According to its annual report, the RTMC managed to rake in R453,143,790 in transactions fees in the 2016/17 financial year, an increase of R33,299,526.00 or 7.93% over the 2015/16 financial year, despite fewer transactions having apparently occurred in the last financial year.

At the same time, the remuneration package of the CEO of the RTMC increased by 31.6% from R5,950,000 in 2015/16 to an enormous R7,830,000 in the 2016/17 financial year. Other executive senior management remuneration packages at the RTMC increased by an average of 19.11% whilst non-executive Board members’ remuneration packages increased by an average of 22.16%. Simultaneously, the RTMC’s employee-related costs came to R367,107,340 in 2016/17.

The recent termination of the RTMC’s contract with Tasima, which contact was unlawfully renewed by former Minister S’bu Ndebele in 2010, should have had the effect of decreasing the input and maintenance costs of the eNaTIS vehicle and driver registry and therefore, beyond increasing the outrageously high remuneration packages which are paid to RTMC executives and Board members, there appears to be no rational reason for the truly massive increase in transaction fees the Minister has proclaimed.

This is more especially true given the fact that the vehicle population is growing with each year that goes by. Between 30 September 2016 and 30 September 2017, the registered vehicle population grew by 211,816, a figure which is consistent with the trends of vehicle registrations which have taken place in recent years. As at 30 September 2017, there were 12,153,062 vehicles registered on eNaTIS, all of which must be licensed annually, regardless of whether they are used on public roads or not.

JPSA calls on Minister Maswanganyi to justify, or at the very least explain the whopping increase in transaction fees he has proclaimed, especially in light of the fact that the RTMC has consistently failed to achieve its mandate with respect to enhancing road safety and reducing the catastrophically high carnage which exists on South Africa’s roads.

Wholly inadequate “apology” from the RTIA

On Tuesday 26 September 2017, JPSA put out a media release dealing with a flurry of SMS and email communications sent out by Syntell (Pty) Ltd on behalf of the Road Traffic Infringement Agency (“RTIA”).

JPSA takes note of the media statement put out by the RTIA on Wednesday 27 September 2017 in response thereto, wherein the Agency offered a wholly inadequate, so-called “apology” to motorists who had been sent SMS messages in what it terms to be a “communication error which has since been rectified”.

What is most notable about this media statement is that it refers specifically and solely to SMS communications sent by Syntell (Pty) Ltd on behalf of the RTIA for newly issued infringement notices in an apparent attempt to add a positive spin to the situation. Nowhere in that statement does the RTIA make any similar apology with respect to the emails sent citing JMPD fines alone and revealing extremely sensitive, private, privileged and personal information in those emails.

JPSA began receiving numerous complaints from concerned motorists almost immediately on 21 September when the emails were first sent out and has already received a complaint from a gentleman in Pretoria who has been emailed the “outstanding infringements” pertaining to another person whom is not known to him. The relevant email reveals that person’s names, national identity number and 30 of the 34 alleged infringements, with the number plate of the offending vehicles emblazoned in it.

Despite the fact that the gentleman who received this email is not in the least bit interested in the private personal information of the person the email was supposed to reach, the unencrypted public display of that person’s private, personal information represents a serious and arguably, unlawful invasion of his/her privacy and could quite easily enable and/or promote identity theft.

“This glaringly obvious attempt by the RTIA to obfuscate and/or side-step the real issues surrounding these so-called ‘communication errors’ quite simply does not cut the mustard, nor does it even come anywhere close to explaining why the payment of ‘stagnated’ fines issued by the JMPD only, dating back as far as five years ago was solicited,” said JPSA’s chairperson, Howard Dembovsky.

JPSA has written to the Registrar of the RTIA to express its dissatisfaction with the RTIA’s so-called “apology” with respect to a far less serious issue and to get answers on the truly serious issues which surround this matter. We await the Registrar’s response.

Please note that the personal particulars of affected persons have been redacted from the document published here since JPSA does respect the privacy of individuals.

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Media Release: Recent SMS messages and emails masquerading as being from the RTIA

Recently, a private company called Syntell (Pty) Ltd which contracts its services to numerous traffic authorities around South Africa has embarked on SMS and email campaigns which purport to originate from the Road Traffic Infringement Agency (“RTIA”) seeking to rake in monies applicable to “stagnated” traffic fines issued by the Johannesburg Metropolitan Police Department (“JMPD”).

Syntell previously did similar with traffic fines issued by the Ekurhuleni Metropolitan Police Department (“EMPD”) in terms of the Criminal Procedure Act, against which a national directive from the office of the National Director of Public Prosecutions ordering the withdrawal of stagnated matters exists.

In the latest email campaign sent from “RTIA@trafficnotification.co.za” recipients’ names, full national identity numbers and vehicle details, as well as a list of some of their outstanding AARTO infringement notices are displayed for all to see. In numerous instances, the fines listed therein date back some five years, to 2012, when the JMPD ceased unlawfully violating Section 30(1) of the AARTO Act by posting bogus “AARTO infringement notices” it had captured on its own systems since April 2010 by “ordinary domestic mail”.

As was held in the High Court Review Judgment in the matter between Fines 4 U (Pty) Ltd and Audi Johannesburg versus Sherman Amos (the Deputy Registrar of the Road Traffic Infringement Agency) and others (Pretoria High Court Case number 30586/2014), the failure on the part of the authorities to comply with the provisions of the so-called “adjudication procedure” prescribed in Chapter III of the AARTO Act not only constitutes a legally valid defence, but also has the effect of rendering infringement notices which have not followed the prescribed processes as being “stagnated” and incapable of proceeding any further.

This judgment did not however have the effect of causing or ordering the RTIA to withdraw/cancel any stagnated AARTO infringement notices other than those which were cited in that review matter, despite having the effect of providing all similar accused persons with the same defence – that the authorities have not followed the prescribed processes.

As is the usual behaviour of the RTIA, it appears to be waiting for alleged infringers to make written representations to it in order have these stagnated fines withdrawn/cancelled, in the apparent hope that less informed motorists will pay these stagnated fines. It adopted exactly the same tactic in the previous matter where the JMPD acted unlawfully – until the JMPD and the RTIA found themselves being threatened with litigation if they did not administratively cancel all of the outstanding unlawful fines the JMPD had issued.

Furthermore, the RTIA now appears to again be favouring the JMPD by allowing the RTIA’s logo and motto to be emblazoned on emails sent by Syntell, referencing infringement notices issued by the JMPD only, while three other issuing authorities also issue AARTO infringement notices and have a stake in the collection of fines.

Nevertheless, from what we have been able to determine thus far, most if not all of the infringement notices referred to in these emails have stagnated and therefore, the threat which repeatedly appears in these emails stating that “*You will not be able to renew your vehicle or driving license whilst an Enforcement Order is outstanding” is, whilst not patently untrue, not only extortive in nature, but is an empty threat since no enforcement order may be lawfully issued on an arbitrary basis.

Sadly however, there appears to be no limit to the lengths to which dishonest authorities and service providers are prepared to go in order to drive their revenues up. This will not change until such time as traffic law enforcement starts to focus on road safety and stops focussing on how much money all concerned can make from pretending to enforce the law.

NOTE: JPSA has published an in-depth advisory on this matter here.

Twenty-year sentence for road killer welcomed

JOHANNESBURG – The twenty-year sentence for three counts of culpable homicide, reckless driving and driving under the influence handed down by Magistrate Anand Maharaj to Mr Kriesen Moodley in the Durban Regional Court recently is welcomed by Justice Project South Africa.

This case proves beyond any reasonable doubt that when judicial officers are presented with properly prosecuted cases, sound convictions can result and the interests of the victims and their families, as well as those of society at large can be properly taken into account in sentencing.

Unlike where people who engage in dangerous road practices end up killing innocent road users are incorrectly prosecuted for murder, the likelihood of appealing the conviction and sentencing succeeding in this case is remote.

JPSA asserts that had the same approach have been adopted in other, high profile cases of a similar nature, the perpetrators would not have gotten off the hook as easily as they did.

The unacceptably high road carnage situation which plays itself out on South Africa’s roads on a daily basis most definitely needs to be addressed and at least part of the solution must necessarily lie in sending strong deterrent messages to those who seem to believe that killing people as a result of engaging in dangerous driving practices is a trivial affair.

This case also has the effect of proving that there is no need to seek to dispose of a person’s constitutional rights ahead of their conviction, as has been repeatedly mooted by the RTMC and the Minister of Transport. All that is required is that cases are properly prosecuted and judicial officers are provided with sufficient evidence in order to convict guilty people and sentence them accordingly.

Increased physical and visible law enforcement also has a vital role to play and would undoubtedly lead to a reduction in dangerous driving practices, and as a result, the needless losses of life and causing of unnecessary suffering, which then necessitates “harsh sentences” arising out of the unlawful killing of people on our roads.

Footnote:

Whilst we are aware that the case for driving whilst the concentration of a blood alcohol sample was not less than 0,05g/100ml, which is a physically separate charge to “driving under the influence of intoxication liquor or a drug having a narcotic effect” was not proven due to what would appear to be the bungling of that element of the case, the fact still remains that this man was convicted of three counts of culpable homicide and the sentences therefor were consecutive – not concurrent. The three year sentence for driving under the influence of alcohol (“drunken driving”) formed only a small proportion of the overall sentence and is not reliant on “exceeding the alcohol limit”.