(Cavan): Yes; one is an amendment of section 49 and the other an amendment of section 50. The same principle is involved.
I move amendment No. 13:
Before section 28 to insert a new section as follows:
"Section 49 of the Principle Act is hereby amended by the insertion after `the vehicle' in subsection (1) of the following: `and if there is present in his body a quantity of alcohol such that within 3 hours after so driving or attempting to drive the concentration of alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood he shall be deemed until the contrary is proved to be incapable of having proper control of the vehicle'."
I want to try to make my position clear. The Minister, by section 28, proposes to make it an absolute offence for a person to drink to such an extent when he is driving, or within three hours thereafter, that the alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood. The Minister wishes to make that an absolute offence. My amendment proposes to make such a concentration of alcohol in the blood prima facie evidence that a person is drunk, within the meaning of this section, and unfit to drive, that a person who has such a concentration of alcohol in his blood will be deemed to be unfit to drive, until he satisfies a court of law to the contrary.
In this Bill we are seeking to rid the roads of drunken drivers. I am sure the House is behind the Minister in that aim, and is prepared to give him a measure which, in our opinion, will enable him to make it more difficult, or indeed impossible, for a person who is unfit to drive a car, as a result of consuming alcohol, to get away with it. But in our efforts to protect the general public from the impaired driver, we should not depart from accepted principles and standards in this country. One is that a person cannot be compelled to convict himself, cannot be compelled to give evidence which will convict himself. The second is that, broadly speaking, people are presumed innocent until proved guilty. I know my amendment has the effect of shifting slightly that onus of proof. Section 28 introduces a new offence— the Minister has told us that before, and will tell us again—that is, the offence of driving a car, or attempting to drive it, while the concentration of alcohol in the blood exceeds 125 milligrammes to 100 millilitres. I say that the offence should be that of driving a car while impaired as a result of taking drink.
A Commission was set up on 14th September, 1961 under the chairmanship of the then President of the High Court, the Honourable Mr. Justice Cahir Davitt. That Commission reported to the Minister on 15th May, 1963 and recommended that it should not be an absolute offence for a person to drive a car if he has a concentration of 125 milligrammes of alcohol to 100 millilitres of his blood. It recommended that such a concentration should be prima facie evidence, and prima facie evidence only, of impairment. The Minister stated this morning that the Commission reported that they did not consider there was anything fundamentally unsound about what he proposed to do, that there was not anything unconstitutional about it, but the Minister should bear in mind that the Commission did not recommend the absolute offence which the Minister seeks to impose in this section.
I shall deal briefly with the Commission's report. At paragraph 50, page 43 of the report it is stated:
If any legislative changes are to be really successful and effective they must, in our view, have the support of the bulk of public opinion. In countries where a certain blood-alcohol level has been prescribed as conclusive evidence of critical impairment, public opinion has, we believe, been conditioned, perhaps gradually, to accept the position. Here the whole procedure of taking and analysing blood samples and giving evidence of blood-alcohol levels in prosecutions would constitute an innovation in criminal procedure with which everyone concerned might take some considerable time to become familiar, as well as an interference with personal rights which public opinion might be still slower to accept as necessary or desirable. It may be that, as a result of experience, public opinion would in the course of time be conditioned to accept and approve of a prescribed level which would be conclusive evidence of impairment. We doubt very much if the education of opinion on the matter has yet reached that stage. We take the view that, initially at any rate, a blood-alcohol level should be prescribed which would be prima facie and not conclusive evidence of critical impairment.
That is the recommendation at paragraph 50, page 43 of the report. In the following paragraph, paragraph 51, it is stated:
Having regard to our examination of the matter in Part VI, the experience of our study groups who visited the Continent and Britain, and all the relevant material which we have considered, we believe that a suitable level is 125 mg. We believe that with such a blood-alcohol level the great majority of persons will be critically impaired. and that to prescribe such a level as prima facie evidence of critical impairment would be just and reasonable.
In the same report at page 71, paragraph 7 of Appendix II, which was the Report of the Committee of the Commission on their Study Tour of the Continent, it is stated:
A major question is whether a specific blood-alcohol level should be prescribed or whether it should be left to the courts. As indicated in paragraph 4, three of the countries have no prescribed level, but the courts have in practice adopted a specific level. Of course, in exceptional cases (where the evidence of witnesses or medical evidence so warrants) a person with a higher level might be acquitted——
this is important
or a person with a lower level might be convicted. If evidence as to blood-alcohol levels were to be used in this country, it would seem to be wise to adopt a specific level as prima facie evidence, otherwise there could be considerable variation in the decisions of different District Courts. The State should be free to produce evidence that an accused was critically impaired even though his blood-alcohol level was below the standard specified, and the accused free to show that he was not so impaired even though his blood-alcohol level was above that standard.
Those are the recommendations in this report of the Commission which considered the matter from 1961 to 1963. For the record, we had the President of the High Court, the State Pathologist, the President of the Safety First Association of Ireland, a general medical practitioner, a superintendent of the Garda Síochána, a psychiatrist, members of the Motoring Associations, the Chief State Solicitor, a District Justice as well as a couple of eminent civil servants on that Commission. They reported and the Minister is not prepared to accept those recommendations.
I would go further and say that the Commission do not appear, in so far as one can ascertain, to have changed their views in the meantime because I consider I am at liberty to say that Father Kennedy, who is President of the Safety First Association, is still of the opinion that the concentration of alcohol which I have mentioned should only be prima facie evidence as recommended by the Commission and should not be an absolute offence.
Furthermore, people who have considered this carefully are of opinion that this section followed by the other sections which must be discussed to some extent with it—those are the sections which make it obligatory on a person to submit to these blood tests— are unconstitutional and will not stand up in the Supreme Court where, I am convinced, this measure will end.
We have here, whether we like it or not, a rigid, written Constitution. I know I am dealing with one specific amendment now but in dealing with this amendment, I am trying to give the Minister a better measure because I will give him a constitutional measure. I am told that this section coupled with the other sections will not stand up against Article 40 of the Constitution. Furthermore, from a practical point of view, if the Minister accepts this amendment and instead of making it an absolute offence to drive while the concentration of alcohol in the blood is 125 mg. to 100 accepts it as prima facie evidence, I am convinced, from my personal experience as an advocate in the District Courts which deal with this type of prosecution, that he will succeed in convicting the person who should be convicted. Most advocates will agree that the person who was charged with drunken driving in the past often got off because he did not go into the witness box. He invariably got off because the State failed to establish a prima facie case against him. Here we are putting an obligation on the accused person of going into the witness box, or producing other expert evidence to establish that although he had this concentration of alcohol in his blood at the time, he was fit to drive a car.
I am told on the best medical authority I can get that people react differently to alcohol, that a person might be, and that many people would be impaired if the concentration of alcohol in their blood was 125 to 100. On the other hand, quite a number of people may be perfectly well able to drive a car with that concentration of alcohol. It is for that reason that I say the Minister should accept the recommendation of the Commission set up by the Minister's predecessor which is, in effect, my amendment, and that he should be satisfied for the time being, at any rate, to make this concentration of alcohol in the blood prima facie evidence only.
The Commission sent study groups to the Continent; they sent study groups to London. They examined the position in a number of continental countries where blood tests of one sort or another were in operation, such as Switzerland, the Federal Republic of Germany, Sweden and Denmark. They studied the position there at first hand. They had the benefit of consultations with the police in those countries who enforce the law. They had the benefit of seeing the procedure as it was operated in the courts. Notwithstanding that, they came back and reported to the Minister in favour of prima facie evidence only.
This blood test is prima facie evidence only in the United States of America, in Denmark, in Switzerland and in the Federal Republic of Germany. It is true that in some States it is absolute evidence, but in those other States they differ very much from us in our approach to the administration of the criminal law. I should like to hear the Minister dealing with the necessity for making this an absolute offence. I know he will tell us it is a new offence and that the question of whether a man is impaired does not arise, that we are simply going to say that if a person is driving a car, he shall not raise the concentration of alcohol in his blood beyond the level of 125 milligrammes to 100 millilitres.
For the benefit of those who may not appreciate what, in fact, is involved in this 125 millgrammes to 100 millilitres, I want to point out that an analysis which was carried out shows that the consumption of 2¾ pints of stout will produce a concentration of alcohol in excess of 125 to 100. Many people would probably think 2¾ pints of stout too much to drink, but a great number of people would think this a very moderate amount and that a great many people would be perfectly sober after consuming it. Approximately two glasses of whiskey, or four small whiskeys, will also produce the prohibited concentration.
As I say, in my opinion, this section is unnecessary. I am quite prepared to give the Minister an efficient instrument to put the drunken driver off the road. I want to emphasise again and again that neither I nor my Party stand here to condone the drunken driver. I do not stand here to say that it should be made easy for the drunken driver to drive and get away with it. What I am saying is that it is not necessary for the Minister to go as far as he is going: to invade the entire criminal code as we know it in this country, and to violate the Constitution by going as far as he is going. That is not necessary. It is not necessary to attain the objective which the Minister has in mind, the very laudable objective of eliminating the drunken driver.
If after some reasonable trial period and after some reasonable experience, the Minister is satisfied that the recommendation of the Commission and my amendment are not sufficient, he is at liberty to come back to the House and ask for the amendment he now asks for. He is going too far and too soon. Before I sit down, I want to emphasise again that what I am doing here is seeking to implement the recommendation of the Commission which reported on driving while under the influence of drink or drugs. My amendment simply seeks to implement the recommendation of the Commission. The section as drafted by the Minister turns down that recommendation, goes much further than that advice, and seeks to create this new offence. In my opinion, in so doing, the Minister is invading—for want of a better word—our criminal code of long standing. He is introducing a section which, coupled with the other sections about which I will complain later on, will not stand up to the scrutiny of the Supreme Court in the light of the Constitution.