A petition seeking to outlaw the use of the breathalyser was Wednesday certified urgent.
The Alcoblow gadget that is used to test how much alcohol one has consumed
Lady Justice Mumbi Ngugi at the High Court in Nairobi directed a motorist who lodged the petition to serve the Attorney General and the National Transport and Safety Authority with the suit papers for a response and report back to court on Friday February 14 “for further orders.”
Mr Richard Dickson Ogendo through lawyer Gitobu Imanyara filed the petition citing hygienic concerns and violation of the constitutional law in the usage of the gadget in curbing drink driving.
The High Court outlawed its use in 2006 after drivers raised similar concerns but National Transport and Safety Authority reintroduced it early this year.
On Wednesday, Mr Imanyara said the police were using the gadget to mint money from motorists. He said the law prohibits reliance on self-incriminating evidence arising from the cases which face offenders after taking the liquor breath test.
The lawyer said the constitution also required public participation “in this kind of exercise to know the short comings.”
“The ministry of Transport are enforcing a legal notice that was made by predecessors...those rules were not, as required, tabled before Parliament and are therefore invalid,” Mr Imanyara said.
“In enacting the said rules the Ministry of transport did not provided for the participation of the p[people as was required ,” the lawyer said.
He said the Alcoblow 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 and hence the chances for their re-use by another person are not eliminated entirely, hence the health concern.
He said the petitioner has noted that the manner in which the Alcoblow rules was being enforced amounted to humiliation and thus breach of a persons “inherent dignity.”
“Calling the media to be present and publicly record the usage of the breathalyser contravenes the right to be respected and protected,” Mr Imanyara said.
Drink driving attracts a Sh100,000 penalty or imprisonment for two years.
The Attorney General and the safety authority who are the first and second responds in the suit, respectively have a day to respond before the case returns to court.