Dáil Éireann debate -
Wednesday, 8 Mar 1967

Vol. 227 No. 2

Road Traffic Bill, 1966: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Dillon

Deputy Fitzpatrick has covered the general Fine Gael attitude to this Bill in considerable detail. I am primarily concerned with the implications of Part V, first, in regard to their constitutionality and, second, in regard to the propriety. I believe I am the first Deputy to draw the attention of the House to the fact that it was my profound belief that, if we could eliminate drunken driving, we would eliminate 50 per cent of the road accidents in this country. I think I was thought to exaggerate when I mentioned that formerly in this House, but I believe that a great number of people are coming to agree with me. Even proceeding on the assumption that my belief is correct, I think we must be vigilant to see that in our solicitude to set that matter right, we do not go to extravagant extremes. We propose to do several things, first, to fix what I call a statutory definition of drunkenness, that is to say, if a person has more than 125 milligrammes of alcohol per 100 millilitres of blood, he is deemed to be unfit to drive a car as a result of the consumption of alcohol. Many people will argue, and I think with great force, that that blood level in one person leaves the person stone cold sober, whereas in the case of another person it may mean that he is physically unfit to drive a car. I think all reasonable people must admit the truth of that but our difficulty in the past has been to determine what is drunkenness and we are driven to the course of saying that drunkenness as a general term is now eliminated and we fix a statutory limit of blood content of alcohol above which nobody must drive a car, drunk or sober, in the ordinary acceptance of those words. In view of our acute problem in this regard, I think that is a proper decision and one over which I am prepared to stand.

Now to come to the question of determining whether in fact that condition of statutory drunkenness exists. I ask the House to pause here because in our desire for reform, we may go overboard altogether. When we think of a procedure in vacuo in this House, we sometimes commit ourselves to things that we would never dream of sanctioning if we thought of them in persona. It is going a very long way to bail up a citizen travelling on a road on his lawful occasions and have a young garda demand that he blow into a bag but I am prepared to concede that there is a great problem confronting us and that the Minister for Local Government is casting about for some satisfactory means of bringing it under control. With great reluctance, I am prepared to agree to that, but I would regard it as being a power in the hands of the garda far in excess of what I would normally think appropriate, and if I did not believe that drunkenness was making so devastating a contribution to the slaughter on the roads, I would resist this proposition energetically. But in the special circumstances in which we find ourselves, as do many other countries, I am prepared to concede that we must ask our neighbours to make this contribution of submitting to the indignity of going through this operation.

Now I come to the next proposal, that the garda is entitled to bring any person whom he choses to bail up and whom he says he suspects is not drunk in the ordinary accepted sense of the word but who has more than 125 milligrammes of alcohol per 100 millilitres of blood to the local police station and there provide a sample of urine or a sample of blood. First, I want to deal with this on the basis of a person who is in fact perfectly normal and is going about his lawful occasions and is not involved in an accident. Can you imagine a garda bailing up an elderly lady of eminently respectable background and general conduct and having first required her to blow in a bag, which she does with reluctance and only because she is conscious of the need for this contribution to social order and to set good example, then requests her to go to the local police station.

These things are very nice to think of in vacuo but suppose it happened to your own mother. I ask the younger Deputies to consider their own mothers, ladies of standing and eminent respectability and with ordinary delicacy of feeling. The lady is brought into the Garda station and told: “We are going to send for a doctor and take a sample of your blood.” She says: “You cannot do that because I will faint. The sight of blood makes me faint.” I think I am not exaggerating when I say that an unknown percentage of people who are asked to give a blood sample, in all the amenities of a hospital find that the sight of blood and the insertion of a needle in a vein causes them to faint. So she says: “You cannot do that because if you do that I will faint.” He says: “Very well, ma'am, give us a sample of your urine.” I am not simply saying that by way of a joke. We are legislating for our own neighbours. It will not upset some young fellow to be offered these alternatives in a police station but I am thinking of the people whom it will upset and I think the first person to be shocked if he came into a situation like that would be the Parliamentary Secretary himself.

Mr. P. Brennan

Nothing would shock me.

Mr. Dillon

I do not agree; fundamentally, I think he is a decent man, and I think if he came upon such a spectacle and found a woman in great distress, he would ask himself: "Does this situation correspond with what we had in mind when in Article 40 of the Constitution we laid down in paragraph 3: "The State guarantees in its laws"—that is what we are doing today, making laws—"to respect and, as far as practicable by its laws to defend and vindicate the personal rights of the citizen."

I want to put this question to the Chair: has a woman the right to drive a car in this country without being dragged off to a police station by a member of the Garda Síochána old enough to be her grandson not because he believes she is drunk but because he believes that the formula has been breached, and asked to submit in the surroundings of a police station to the drawing of her blood or else providing for the custody of the Bureau which is to be established under the Bill, a sample of her urine? I want to suggest to the House that not only is that a revolting proposition in itself but I believe that if the Constitution is invoked, the Supreme Court would hold that, in passing such legislation, we have failed to observe the obligation put upon us to guarantee in our laws to respect, and, as far as practicable, by our laws to defend and vindicate the personal rights of the citizen.

Subsection (2) of Part 3 of that Article on Personal Rights says:

The State shall, in particular, by its laws, protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

I believe this proposal is unconstitutional. But leaving out the constitutional issue, I am addressing myself to the ordinary decent reactions of the average Deputy. What I am afraid of is that in considering this proposal, Deputies are thinking of irresponsible brats driving sports cars who would not give a damn if they were stripped naked in the station, and to whom it would be no psychological shock to undergo any kind of physical jostling of that character. But we are not legislating exclusively for such persons; we are legislating for everybody. I ask the House: is it a reasonable suggestion that a procedure of this kind should be imposed on a man of standing, or a Deputy, for instance, under sanction of six months' imprisonment if he does not submit to it, if that gives Deputies even reason to pause, and I think it should? Then there is the case of a respectable woman who is exposed to this test and I say it is unthinkable for a body to provide that, under penalty of six months' imprisonment, a woman should be asked to submit to a test of this kind.

There is a third aspect of this situation to which I think the House ought to direct its mind. I have been dealing up to now with people who are going about their lawful duties who are stopped by a garda on suspicion that they have violated the blood sample formula provided in the Bill. Now I come to the case of a person who has been involved in an accident and such a person, the gardaí may come to the conclusion, smells of drink. Remember, we are legislating for the imposition of a penalty. I was driving during the Waterford by-election campaign and not every Deputy will remember the Saturday night before the poll was the coldest day which came out of the heavens. After coming off the platform, somebody gave me a Baby Power, which is a thing I do not ordinarily drink and said: "Mr. Dillon, you ought to take that on your way home or you will die of the cold". I was very cold but I did not drink the whiskey. My apprehension is that a man in a similar circumstance to mine might strike his head against the car and the whiskey bottle be broken and spilled, and in fact I might be seriously concussed without any drink of whiskey.

Now even an experienced, sensible and prudent member of the Garda Síochána might legitimately, in that context of the section of this Bill, bring me to the police station and go through all this formula and I might —being concussed and shocked—give him a very sharp answer, rendering myself liable to six months in jail. But what is worse, gradually subsiding into a coma, whereupon an ambulance would be sent for, which might arrive within the next half-hour or so, I would arrive in hospital, only to be told later that I was suffering from sub-arachnoid bleeding, from a fracture of the base of my skull, or something like that, and there was now a doubtful question as to whether or not I would recover at all or, if I did recover, that I would suffer permanent brain injury.

Now, you think that a desirable situation to create. I want to put it to the House that the place to take a person who has been involved in an accident, and who may have all the exterior signs of having partaken of alcohol, is to a hospital and there in the hospital—having had him examined in the casualty department— let the Garda then proceed to lay any charges, or go through any formula they want, but the first thing is to see that the man is not dying, because certainly it is not our intention to sentence irresponsible motor drivers to death. Now I know there are some Deputies who will say: "Deputy Dillon is a foolish man; he will be portrayed as defending drunken drivers". I do not give a fiddle-de-dee what I am portrayed as; I am here to do my job. My job is to stop drunken driving by legislation which will commend the assent of all reasonable people in this country. I do not think this Bill will. I think, if this Bill passes in its present form, the President ought to send it to the Supreme Court for examination.

I am quite prepared to recognise the difficulties and problems of the Minister for Local Government and I would be quite prepared to go as far as I thought it humanly reasonable to go. I think it is ample to say we have put upon everybody the obligation to blow in the bag and mind you, I do not minimise it! I think it is a grave offence to the legitimate personal dignity of the average person. But I think it is a contribution most people would be prepared to make in the common effort to suppress drunken driving. But I would be prepared to say this: on a person being charged, he or she should be informed: "You are entitled, ma'am, to ask for a doctor and the police doctor will attend or your own if you want him, but if you ask for one, the police doctor will attend right away. We cannot answer for what your doctor will do. If you like, we can have a sample of your blood taken and other tests made. If you want to do that you are welcome." I am prepared to go further and provide that in the event of a person being informed of that right and refusing to accept it, the Guards will be entitled to tender that in evidence in court. It will be up to the defendant to say: "I refused that in the Garda station because it was something I could not face", and the justice will determine whether the man or woman is speaking in good faith when he or she say that, or determine whether he or she is trying to suppress the true position in which he or she was.

We are not forbidding the Guards to go through the existing procedure. If they arrest a person for drunken driving of a car, they can send for the police doctor and ask him to apply the ordinary tests—walking a straight line, the defendant expressing himself in tortuous sentences—and they can produce the doctor who may say that by all ordinary tests he thought the man was drunk. I am prepared to agree to that. Over and above that, the Guards will be entitled to say: "We offered him the right to submit to the blood test and the urine test and he refused; we told him he would not be confined to the police doctor, that he could get his own doctor, and he refused that", and let all these facts be brought before the court where the justice can evaluate them and determine whether the person was fit to drive a car or whether the person turned down the tests in an endeavour to suppress the fact that he was unable to drive a car. To make it a statutory offence punishable by six months in prison for failure to submit to the two tests is, in my opinion, a horror.

We are drifting into these situations not in one leap of indifference to human rights, but inch by inch we eat into human rights until eventually we find ourselves quoting past precedents to justify our actions. That is what a Constitution is for. I have never had any great esteem for Bunreacht na hÉireann which I think is mostly cod, most of the Articles in it being largely suspended, nothing there except Article 40 which is enforceable by the courts. Article 40 was put down as representing the general consensus of opinion on the fundamental rights of the people of our country, and formidable as is the danger, and I do not deny it, of drunken driving, and shocking as are the consciences of people who drive cars under the influence of drink. I still think there are limits beyond which this House should not go in legislation of this kind for the purpose of suppressing this evil.

Again, I press very strongly on the Minister, to try out what I am proposing to him now. If that does not work, let us think of the problem again and see whether these precautions are deflecting our purpose to prevent persons under the influence of drink from driving according to the formula set out in this Bill. Deep down in our hearts we know there is only one sure guarantee against the drunken driver, that is, to teach every man and woman: "If you drive do not drink; if you drink do not drive". That is the real guarantee and it is not an intolerable argument.

I do not believe in pressing young people too far in regard to certain standards of conduct but one standard I would insist on for four or five young fellows going out in a car for a night is that one of them will go on the wagon, on the understanding that on the occasion of the next four hooleys, he will not have to go on the wagon. I can best illustrate this by experiences which we had ourselves. Thanks be to God, I was only once in a car that killed a person. The night I was called to the Irish Bar we dined in the Kings Inns. We dined well, as we intended to, and we proposed to drive to Harold's Cross to the dogs—four of us who had been called to the Bar—and none of us was on the wagon. However, I had taken the prudent precaution of saying: "Now boys, the car stays in Henrietta Street." We hired a car with a responsible driver and the four of us piled in and all my life long I shall thank God for that decision. As we were driving along the canal bank that summer evening with little children playing, a little child, about five years of age, darted out from behind a lorry. The car struck the child and by the time we got the child to Temple Street—I think it was Temple Street we took the child —it was dead.

That fixed in my mind the rule that the only safety is: "If you drink do not drive; if you drive do not drink". I do not honestly think that any one of the four of us was drunk on that occasion but none of us would ever be easy in our minds the rest of our lives if we had not taken the precaution of insisting that the driver of the car had no drink and that we did not take out our car. If we had killed that child—I believe the driver was utterly blameless and he was so found subsequently to be: the child, playing, looked over its shoulder as it ran out —whatever the attendant circumstances, there would have been a psychological trauma that we would have carried through life. But for the fact that we had foreseen the essential urgency of the rule: "If you drink do not drive and if you drive do not drink", one of us would have had regrets for the rest of our lives.

Mind you, I believe it largely devolves—I will not say exclusively—on parents to teach their children that lesson in their adolescence, not by assuming the attitude of excessive rigour and undue capacity to be shocked, but simply to lay down that minimum standard of conduct. It may be disedifying to take a drop too much, but it is unworthy and it is criminal conduct when going out not to provide that at least one of you will be on the wagon and that he will be the only one to touch a car. Therefore, with all those things present to my mind, I am prepared to go a long way to help the Minister for Local Government with the problem he is called on to deal with. I exhort Deputies to join with me to ensure that there are limits beyond which we should not go, conscious as we are of the gravity of the problem and the magnitude of the difficulties associated with its solution.

I am sure there are some relatively minor matters in regard to this Bill on which I should ask for specific information, although I imagine Deputy Fitzpatrick has already mentioned them. I cannot understand why the Minister wants power under section 9 to control the importation of vehicle parts. I do not know what that has got to do with a Road Traffic Bill. I can understand it in the context of a general policy of protection or something of that kind but I cannot see how it comes into the context or relevance of this Bill. I would be glad, when concluding on this stage, if the Minister would give us a more concise explanation of why it is here.

I would direct the Minister's attention to section 27. This deals with the person who is in charge of a car. Subsection (3), paragraph (b) says:

a person who is or has been in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle but not driving or attempting to drive it and who, in the opinion of the member, is commiting or has committed an offence under this section.

Offences under this section are set out in subsection (1) which states:

Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor, he may require him to provide in the prescribed manner a specimen of his breath by exhaling into an apparatus designed for the purpose of indicating the presence of alcohol in the breath.

Subsection (2) states:

A person who refuses or fails to comply forthwith with a requisition under this section shall be guilty of an offence.

Subsection (3) states:

A member of the Garda Síochána may arrest without warrant—

(a) a person who has been driving or attempting to drive a mechanically propelled vehicle in a public place and who, in the opinion of the member, is committing or has committed an offence under this section, or

I want to draw the Minister's attention to this. I have had cases drawn to my attention about a man who comes to the conclusion that it is not wise for him to drive a car, and who has deliberately gone into the back seat, divorcing himself from the wheel and from the ignition. He has gone to sleep because he knew he was not fit to drive a car at all and he wanted to get into a condition in which he would be fit to drive a car. Short of lying down on the grass margin in the lane or going away into a field and abandoning the car, he deliberately got out of the front seat and went into the back seat in order to recover himself and be fit to drive a car.

I have also known of cases where people found they were getting sleepy. It has happened to myself. I have been driving a car and I have been conscious that I was getting sleepy. I have stopped the car and gone into the back seat. I went to sleep and slept for ten or fifteen minutes. I then got up and walked up and down the road for five minutes to get some fresh air. I got into the car and was able to drive perfectly safely. Under this section, as far as I can see, if a Garda Síochána comes along in either of those situations, he can find me guilty of an offence because I am in charge of a car which is actually stationary. Suppose I have a higher alcoholic blood content than the Bill allows, and have put myself in the back of the car to keep away from temptation or danger, am I not substantially complying with what the law requires, that is, that I have effectively prevented myself from driving a car?

Now, I know some scrupulous Garda Síochána will say: "You could not be up to them. He would know you were coming to get your claws on him and he could jump into the back of the car". It is like the Revenue Commissioners who want the right to put the ball and chain on to every person who has not paid his tax. They want to get their claws on to him and they are prepared to swear that if they have not the right to put that manacle and chain on to that person, they cannot get the tax from him. Take the manacles and chains away and the Revenue Commissioners get their tax the same way.

Every police officer will always ask for more and more power, accompanying it with the assurance: "We are neighbours' children. You do not expect us to act like lunatics or madmen. Those powers will be used reasonably". Of course they will be used reasonably in 70 or 80 per cent of the cases but it is the 20 per cent we have got to look after. I love the story of the man driving his car without due consideration from St. Stephen's Green down Grafton Street and the garda who used to be on duty there, being a man of long experience, protected him from the manifest gesture of careless driving. He walked over to the car with great solemnity. The man in the car felt he was guilty and was bracing himself for a serious assault. The experienced guard looked in through the window at him and said: "Do you, know, you are driving like an ould wan". He then waved him on. That was a sensible man but you could get a young lad dealing with that situation and there would be ruaile-buaile, with patrol cars coming from the four corners of the city and blue murder, whereas when the man was told by the experienced garda: "You are driving like an ould wan", he said to himself: "I made a damn fool of myself at the top of Grafton Street. I was lucky to get a reasonable guard and it will not happen again".

We are not legislating in the belief that all public servants are experienced, prudent and sensible; we are legislating in the knowledge that we are human and that public servants are human. Therefore we must put into the hand of the public servant no more power over the individual citizen than can be safely committed to him. I should like the Minister to look at that question and ask himself if the man has taken precautions to preclude himself from driving in the manner described by me, it is appropriate to describe him as in fact being in charge of the car and in the process of committing a statutory offence.

I ask the Minister to look at section 34. I think he will agree with me that to understand that section is extremely difficult:

(1) On the hearing of a charge for an offence under section 49 or 50 of the Principal Act, it shall not be necessary to show that the defendant had not consumed intoxicating liquor after the time when the offence is alleged to have been committed but before the taking or provision of a specimen under section 29 or section 32.

(2) Where, on the hearing of a charge for an offence under section 49 or 50 of the Principal Act, evidence is adduced by or on behalf of the defendant that, after the time when the offence is alleged to have been committed but before the taking or provision of a specimen under section 29 or section 32, he had consumed intoxicating liquor, the court shall disregard the evidence unless satisfied by or on behalf of the defendant that but for that consumption the concentration of alcohol in the defendant's blood (as specified in a certificate under section 42 (3) or 44 (2) ) would not have exceeded a concentration of 125 milligrammes of alcohol per 100 millilitres of blood.

That is pretty complicated but I can follow it on close study, but now I come to subsection (3) and I would like somebody to explain that to me:

A person shall not take or attempt to take any action (including consumption of alcohol but excluding a refusal or failure to provide a specimen of his breath, blood or urine) with the intention of frustrating a prosecution under section 49 or 50 of the Principal Act.

A person who contravenes this subsection shall be guilty of an offence.

Can anybody make head or tail of that because I cannot and I did not begin construing Bills today or yesterday? I would invite the Minister to have a confidential chat with the draftsman and to ask him whether he understands it. I shall not ask the Minister to state explicitly to the House whether he, the Minister, understands it or not, but I suggest to him that whatever that subsection is meant to mean could be more explicitly expressed.

I pass to section 41:

No action or other legal proceeding shall lie (except in the case of wilful neglect or default) against the Director or against the Bureau or any members or officer or servant thereof by reason of, or arising out of, the carrying out of any analysis or determination under this Act.

I do not see why the word "wilful" should be in there at all. It may be that by a catastrophic disaster a person may have a positive test produced by a servant of the Bureau. You might find a citizen who feels confident and says: "Certainly, I submit to both tests most willingly; I am not in the least afraid of them." He provides a blood and urine sample. He knows he has not touched alcohol in 48 hours. The tests are then made. Remember, by definition, the man is not drunk. All that is charged against him is that he has more than 125 milligrammes of alcohol to 100 millilitres of blood. The samples are taken and the Bureau takes them in charge.

In the Bureau is a drunken bowsy who has got the job there because he could not hold any other job and because he knows a Fianna Fáil TD who said: "He is on the batter night and day; he has a wife and a long string of delicate children. Give him a chance; he cannot do much harm in the Bureau." He takes the sample and he returns a report to the effect that this fellow was as drunk as a flute-player. The man is prosecuted. He knows he has not had a drop of drink for 48 hours before those samples were taken but the Bureau says: "You were as drunk as a flute-player." The man will call evidence. He will try to get somebody who has been with him for every minute of every hour of the previous 12 hours to demonstrate he has not touched alcohol but there will be at least 40 per cent of the charitable citizens of this city who will say: "There was never smoke yet without some fire."

He establishes a defence of his character with the impeccable test that he was in company—mind you, that is not an easy thing to do—for every minute of every hour of the previous 12 hours. He then establishes that the drunken ex-secretary of the Fianna Fáil cumann could hold down no other job and that he has not been sober after midday for the past 15 years. He establishes that he was weaving drunk when he made the test and that, in fact, he reported on the samples provided by a drunken coal-heaver from the North Wall, in respect of a leader of the Bar, the medical profession or even a Deputy of this House, perish the thought. He sues the Bureau for damages for slander or libel, if that is the appropriate word.

The Bureau says: "Yes, we hired a drunken old bowsy who was kicked out of every other job because he was the displaced secretary of the Fianna Fáil cumann and they could plant him nowhere else. They had him above in Lower Mount Street for a while and they had to push him out of even there and all he had to do was sit below in the coal-cellar and he would not even sit there. They got rid of him and put him into the Bureau. We admit he was as drunk as a flute-player. We admit he made a report on the samples provided by a drunken coal-heaver from the North Wall and we admit that he produced them in the court because he got them. We admit this person was convicted on false evidence and that he suffered great damage in his reputation and heavy financial loss."

Section 41 of the Road Traffic Bill, 1966 says that unless you can prove wilful neglect, you are down the drain. You get up and say: "Well, I came to court principally to get damages; I am entitled to damages. I came for litigation." The answer is manifest: "You are not entitled to succeed. Section 41 of the Road Traffic Bill precludes you from succeeding, not only against the director of the Bureau, not only against the Bureau itself but against any member or officer or servant thereof."

I suggest to the Minister that that word ought to be taken out and that the Bureau itself ought to be liable for neglect or default the same as anybody else. If not, I do not doubt that the servants in the employment of the Bureau will be eminently satisfactory. I do not doubt the director, and I do not doubt that one of the conditions of his employment is that he will appoint people directly on the basis of "appointing those who support us, all other things being equal", but bearing constantly in mind that those belonging to Fianna Fáil cumainn are a little more equal than anybody else. I think people appointed on that basis are at least liable for neglect or default on the same terms as anybody else.

There is an odd feature, Sir, in section 58. It provides:

(1) A person who is found in a public place in such a condition, because he is under the influence of intoxicating liquor or a drug, as to be a source of danger to traffic or himself shall be guilty of an offence.

(2) A person charged with an offence under this section shall not, in respect of the facts alleged to constitute such offence, be charged under section 12 of the Licensing Act, 1872.

I do not know what that means. Where is the penalty clause? What penalty clause covers section 58? I could not find it. This is capable of explanation and I should be glad to have it when the Minister concludes.

These are points upon which I call for review and consideration. They are relatively unimportant, though I do not think they should be regarded as unimportant. I think it is necessary to have negligence attached to members of the Bureau. The other points I mentioned are worthy of careful consideration but the matters I have mentioned in connection with Part V of this Bill are, in my judgement, of fundamental importance. I do not think the matters I have mentioned should be made the subject of a Party whim. I want to proceed on the assumption that, whatever our differences in this House may be, we share a common purpose in vindicating the fundamental rights enshrined in the Constitution for all citizens of the State. Part V of this Bill is gravely trespassing on these rights. I can see readily that the quality of this trespass may not be of a kind that is immediately manifest to everyone but I am certain that it is a very real trespass. I am certain it is a very substantial step along a very evil road. I hope the Constitution is strong enough to arrest it.

On these grounds, I direct the Minister's special attention to what I have said in regard to these matters and I urge him strenuously to promote general support against that which I think is a draconian method of control of what I can see readily to be a great evil. He should remove the penalties to which I have referred and substitute therefor a right in the Garda authorities to offer this procedure to any person, and in the event of his refusing to avail of that, to authorise the Garda Síochána to state that fact in evidence in court at the time of prosecution. The court can then determine on the facts whether the reluctance to submit to these personal indignities, was in fact a genuine reluctance to submit to such indignities or a desire to cover up the plain fact of intoxication.

Mr. N. Lemass

I should like to start with a quotation from Isocrates:

When there are a number of laws drawn up with great exactitude it is proof that the City is badly administered; for the inhabitants are compelled to frame laws in great numbers as a barrier against offences.

I chose that quotation because I think this Bill in the form in which it has been presented to us is a reflection on the Government's inability to carry out existing laws which deal with these matters adequately. I believe that the laws at present on the Statute Book are adequate and are in very little need of improvement.

As most Deputies have dealt with Part V of this Bill first, I shall do so also. In this Bill as in most legislation we get from the Department of Local Government, the word "regulation" or "regulations" appears 99 times. It is most significant to note that this word, "regulation" or "regulations" is almost completely absent from Part V of the Bill. Part V of the Bill was ill-conceived and put on the Statute Book casually and without any proper study or consideration of the problem with which it tries to deal.

The demand for legislation of this nature has changed in its concept from the time of the last Road Traffic Bill. Now, it appears to me that the Government is introducing this Bill to get into a campaign against drinking as such, instead of trying to improve the position in so far as accidents are concerned, and that it has been framed out of emotion.

I remember that, during the debate on the 1957 Intoxicating Liquor Bill, I verbally opposed—not, naturally, in the Lobby—the proposals to do away with the bona fide law. These were supported, in the main, because it was held at that time that all these accidents were being caused by people rushing out to the bona fide, getting drunk and coming home and bump ing off people like nobody's business At that time, the Taoiseach gave us statistical information to the effect that, of all the accidents, less than three per cent involved drink. However, we did away with the bona fide system. Many publichouses and places of entertainment on the outskirts that had invested large sums of money to cater for this demand found themselves seriously hampered. Most of them, I am glad to see, have now provided other entertainments and food, and so on, and have managed to preserve their business. The point is that we did away with this bona fide trade.

One would expect, in view of what was said in 1957, that there would be a sharp decline in the number of accidents in which drink was involved but this did not happen: the number of accidents went up. Instead of improving the situation, we in fact worsened it. As Deputy Dillon said, let us not confuse this issue with a couple of irresponsible young people in their sports car. We are dealing here with the ordinary man who drives a car, the man who, if he thinks he had a little too much at a party, will cling to the kerb, observe the speed limits and drive with complete excess of caution.

I often wonder why there are so many deaths and accidents—in far greater proportion to the numbers we have here—in countries that have these blood tests, breathaliser tests and far stricter legislation. It seems to me that these countries would do well to adopt our present laws, under which we get better results, instead of our adopting their statutes which, in those countries, are causing a far greater problem than we have here.

Many of the findings of the commission on driving under the influence of drink or drugs were based upon supposition and personal opinions. Paragraph V of the Report says:

Having regard to the nature of our published statistics, we can only infer one conclusion that drink plays a more prominent part in the cause of accidents than the accidents would suggest.

At Appendix 6, Table 1, we read that of the average percentage of yearly motor accidents, where the condition of the driver was considered to be a primary factor, drink or drugs was 2.16 per cent. What about the problem of the 97.84 per cent? Are we not to concern ourselves with these?

As I say, this legislation appears to me to have been conceived for the purpose of window-dressing and to appease some anti-drinking, total abstinence organisations rather than for the purpose of preventing accidents. These associations will say of Deputy Dillon and of me that we should not encourage drunken drivers. I, like Deputy Dillon, and as he said, will not give a fiddle-de-dee.

When this State was founded, we took over the laws that were framed in England and we amended these from time to time. Some of the laws were good and some of them were bad. There was one good feature which has persisted in Irish law since the establishment of the State, that is, that a man is innocent until he is proved guilty. Long before we come to Part V of this Bill, there is an attack on that position. In section 10, Part II, we read of being presumed guilty unless such and such. Right through the Bill, one is presumed guilty unless such and such. The whole principle of being innocent until proven guilty is done away with in this Bill and it is a principle which I think we in this House should defend very strongly.

I urge the Minister to have a long look at and to give very serious thought to this Bill because to ask Deputies such as myself to come in and to support this Bill is to put a very serious strain on our personal conscience. I realise that I have been elected to Dáil Éireann as a member of the Fianna Fáil Party and as a supporter of a Fianna Fáil Government. If this principle of being deemed guilty until proved innocent is upheld, then I must say that I could support the Party only with great reservations of conscience.

I can leave here tonight at 10.30 without taking a drink at all and, as a result of this speech and other matters that will happen, feel rather tired and exhausted. Suppose I get home at 11 p.m. and decide to sit up for a couple of hours and have a drink or two to relax my nerves before I go to bed. Suppose a policeman comes along at 1 a.m. and knocks at my door and says: "Somebody said you were driving your car erratically in St. Stephen's Green at 10.45 p.m. I am here to take a sample of your breath." If I refuse, I am guilty of an offence and liable to jail for six months. If I give the sample, and it proves positive as a result of drink I took after I got home, I am still guilty of an offence. This, to my mind, leaves wide open the principle that if a policeman has some justification for thinking that a man is driving erratically or sees him approaching in an erratic manner, then certainly the policeman should take steps and such steps, I think, as were suggested by Deputy Dillon rather than those suggested in this Bill. But to leave it, for example, wide open for a political opponent who has some spite against me, for some reason or another, to be able to phone up the local police station and to say that I was driving erratically in St. Stephen's Green so that a policeman comes along three hours later to take a breathaliser test is draft. It is nonsense. It does not make sense. I cannot see its being upheld if sent to the Supreme Court.

Radio Telefís Éireann decided to test this breathaliser test live on TV. One of the reporters on Telefís Éireann drank one glass of Irish whiskey. He took the test and gave a positive result. We are told by the Minister that one can drink, I think, 2½ glasses to fit in with the formula but one glass gave a positive result with this Radio Telefís Éireann reporter so he was guilty of an offence after one glass of whiskey. The breathaliser is not proven an accurate instrument. The television test proved that.

The British Dental Association made an investigation with people with cavities in their teeth. It was found of people with cavities in their teeth who took a drink that the alcohol lodges in these cavities which is not the case with people with false teeth or with no teeth or with a full set of good teeth. The reaction to the breathaliser test is quite different. A far more positive reaction is always procured from a person with cavities in the teeth—so now it is an offence to have cavities in one's teeth. One might pass the borderline as a result of not seeing one's dentist often enough.

I took one or two clippings from newspapers since this Bill was published. In the Sunday Press of approximately April, 1966, Frank Ward wrote that he read of an instance where three liqueur chocolates were taken by a young woman reporter in Britain as an experiment and that she breathed into the plastic bag which is part of the alco-test kit. According to that device, the alcohol in her case registered at a point which proved she had drunk the equivalent of nine small whiskeys. This is very pertinent when we consider the Dental Association report. Obviously, the liqueur sweets lodged in the teeth whereas the nine small whiskeys would mostly pass down into one's stomach.

The column goes on: "While in Chicago I saw seven judges sit down in their circuit court chambers to see if they could produce the alcohol content in the blood. One of them took three martinis and the other six had double bourbons but none came to the drunk point in the breathaliser. They then sent their findings to the chief judge of the circuit court." No matter what we hear about the breathaliser and its use, we find that it is inaccurate and has been proved to be so. For that reason it should be taken out of the Bill in its entirety, whatever about the blood tests and the urine tests. Let us get rid of the breathaliser first, even if we cannot get rid of the whole Bill.

On January 30, 1966, in the John Gordon column of the Sunday Express, it is asked what is the weight of expert evidence which human life leaves to the expert judges and the writer points to two outstanding examples. One is where traces of arsenic were reported to have been found and it was held that they were administered by the accused person. However, it was ultimately found that the arsenic had been in a filter used in the test. In the second case, the amount of alcohol reported in the system of the accused person was found to have been enormously increased by the use of an instrument which had been sterilised in alcohol. I hope the Minister will accept these quotations as evidence that the breathaliser must go.

I also read an article by J. Devlin in the Licensed Vintner, which could probably be accused of being prejudiced. It appears in the form of a question-and-answer session with Mr. Brian McConnell, the Minister for Home Affairs in Northern Ireland in which he said that before accepting the suggestion of the use of certain tests, it would be necessary for him to be satisfied of the accuracy, reliability and standard of maintenance of these machines which, he said, were still only in an experimental stage. The Minister also pointed out that the machines, if used in certain circumstances, could not be anything more than a rough indication of the capabilities of a potential driver. So it is not only here that the breathaliser has been seriously questioned as a reliable instrument on which to form a judgment.

Another objectionable thing is that this test can be demanded, whether or not the driver shows any visible signs of drunkenness. This gives to the Garda an excessive authority, an excessive authority which also occurs in section 12. I know of an individual, an Englishman, now an Irish citizen, who had a serious disagreement with a sergeant of the Garda not so very far away from Dublin, in the Dún Laogh-aire-Rathdown district. This sergeant was apparently very displeased at whatever took place between the two of them and each time that man drives through the sergeant's district, his car is stopped, he is asked for his driving licence, his insurance certificate, his lights are tested and his tyres examined. This has happened two or three times a week.

Mr. James Tully

What is the name of the sergeant?

An Leas-Cheann Comhairle

There will be no names.

Mr. N. Lemass

As a result the gentleman in question does not now drive through the sergeant's district. He has found an alternative route into town. Or take a small town where the sergeant's daughter is married to a publican and where there is only one other publican in the town. All that sergeant has to do is park himself outside the opposition public house and put everybody coming out of it under the breathaliser test and ask them to take the blood test and the urine test, or else they will go to jail for six months. What sort of legislation is that? The Minister is taking the power from himself and giving it to the individual garda. Under this Bill justice cannot appear to be done and individual private prejudice can interfere with the administration of the law. It is not good enough.

Deputy Dillon rightly quoted Article 40 of the Constitution. If he had not done so, I would have done it. It says that all citizens as human beings are equal before the law and that the State should have regard to the different capabilities of its citizens. Under this Bill the State is not having regard to the different capabilities of people to drink. It has been demonstrated that some people, after the consumption of two glasses of whiskey, instead of being dulled, are affected in the reverse way. It could be said that a 20-stone labourer has a much greater capacity for alcohol than a lightweight office clerk but while this might be accepted as a general rule, it cannot be defined as a definite rule.

How are we going to equate people? How is any judge going to equate people who are not average? If we are to equate people, a lot of individuals will be left out. Sections 27, 28 and 29 of this Bill are in serious conflict with Article 40 of the Constitution which says that the State in its laws protects the subject and, as far as practicable, by its laws defends and vindicates the personal rights of the citizen. I would expect the State to defend my right not to urinate in a bottle at the back of some police station. As Deputy Dillon so rightly pointed out, a respectable lady is brought in and is asked, not by a bangarda but by the member in charge of the station, who must be a male person, to give a urine sample and I gather it will have to be given where he is a witness that it is a genuine sample if it is to be upheld in evidence. Is this what the Minister envisages? Is this what he has in mind?

To revert to my original concept, this is an emotional section of a Bill. The Minister was not able to give me any statistical information. There was no study of statistics. The Minister was unable to give me any guidance as to why this part of the Bill was necessary. I was given no reasons at all either by the present Minister or his predecessor.

Mr. Andrews

The Minister stated the reasons.

Mr. N. Lemass

I disagree. If the Deputy will allow me to continue—I have no doubt he will be speaking later——

Mr. T.J. Fitzpatrick

(Cavan): On both sides of the Government Party.

Mr. S. Dunne

This is very unseemly dissension.

Mr. James Tully

Can we do anything to settle this row?

Mr. S. Dunne

Let them fight it out in public.

Mr. N. Lemass

I should like to deal with facts based largely on study carried out by the Council of Europe. I have often heard it said that probably the most effective way to deal with the driving offender is the removal of his licence. However, it has been found in the United Kingdom as a result of a special survey that the number of people driving cars without holding a driving licence is rapidly increasing and it is suspected that some 75 per cent of the people debarred at some time or other drive vehicles without possessing a licence. This type of statistical survey should have been carried out by the Minister before he came in here with recommendations. It was found in this survey that 50 per cent of the pedestrians who were killed were either drunk or very drunk. The World Health Organisation made that report. Nevertheless, when the Minister comes to deal with pedestrians in section 59, he refers us back to an Act of 1800 and something.

This Part of the Bill, like practically every Bill we get from the Department of Local Government, is probably put in as a bit of window-dressing in the hope of getting popular political support and not in the hope of dealing with the question of road accidents.

Mr. S. Dunne

This is the greatest performance ever.

Mr. N. Lemass

In the study carried out by the Council of Europe, it was discovered that there is a relationship between accidents and the number of years spent at school and that people who could not hold down jobs for long periods or people who chop and change jobs, people who could not stay in one job, were more prone to accidents than people who stay in constant employment.

I have here a summary of the report which says that criminologists have known for a long time that short-term prison sentences from three months to six months do more harm than good, that in the past 20 or 30 years, such sentences, therefore, have increasingly been replaced by fines and have only recently become more prevalent again due to the steep rise in road offences. This raises the question of the six months' sentence which runs through this Bill. Obviously, I am not going to read even the summary of the Council of Europe Report. I am just mentioning some of the points made there to show the type of study carried out at European level and which should have been carried out here before legislation was introduced. The legislation should be introduced backed by a study of sociological, medical and educational aspects having been considered.

I agree entirely with what Deputy Dillon suggested, in so far as there is an alternative. Deputy Dillon suggested that a person suspected of being drunk can be brought into the station and told that he or she will be charged, or they can be charged and they can be told that they may take, in the presence of their own doctor, a blood test or may give a sample of urine and, if they refuse to take this blood test or to give this specimen of urine, this evidence will be presented to the judge and the judge can bear it in mind when adjudicating on the case. This, to my mind, would uphold the spirit of the Constitution. It would deal with the serious problem of doing away with the basic principle of being innocent until proven guilty, which is a principle we should defend.

I read of an experiment which took place in one of the States of the United States of America. In the precincts of the police station, there was a movie camera and a movie film was taken of a person taken in to be charged with drunken driving. The next day, when the person was about to be charged, he was shown the film. The result of this experiment was an enormous increase in pleas of guilty, when people saw themselves and their behaviour in the police station. That is an experiment that the Minister might consider. We must experiment in these fields before we enact legislation that goes to the extent this Bill goes, which is far in excess of what the Commission recommended.

I should like to conclude my references to the drunken driving provisions by saying that the pressure groups the Minister, apparently, has tried to appease are not guilty of trying to make us think as they do but are guilty of trying to make us do as they think. There is a serious difference there. I do not think any Government should fall into that trap.

As I have said, it is in section 10, subsections (4) and (5) that we first see this business about people being presumed to be guilty unless it can be shown that the contrary is the case. That section deals with the control and operation of trailers. No longer can a person get the benefit of the doubt if subsections (4) and (5) of that section are enacted. In most cases there must be conflicting evidence if the matter is contested. Every justice should have, and should be guaranteed, the right, when there is conflict of evidence, to give the benefit of the doubt or not to do it, according to his own judgment. That is what he is there for. It is not for us to tie his hands in that regard by enacting legislation of this kind. As I already mentioned, I feel in regard to section 12 that there are sufficient opportunities under existing legislation for the possible victimisation of people by policemen who fell out with them for some other reason and I do not see why we need to strengthen the position in section 12.

All that I have to say about the Bill is not critical and I have a good word to say about section 18, which relates to the control of driving instruction and which is most timely and essential. I suspect that without any firm say-so from the Government, or from the Minister, that such-and-such a school is qualified to teach you to drive a motorcar means that there must be people operating such schools who are not qualified, and for the Minister to make regulations in this regard is overdue. I hope that this part of the Bill will be enacted as it stands. I can see no reason for any change in it. If it is enacted, I hope the Minister will not leave it on the Statute Book for a long time and that the regulations will be brought in speedily. I hope that he has already started to examine the regulations that might be desirable under this section. It is something that was mentioned by my colleague, Deputy Briscoe, on the Estimate for the Department of Local Government, and I am delighted to see it incorporated in this Bill.

Of all the matters in section 18 I consider subsection (2) (g) to be the most urgent and the most important. Unfortunately this part of the Bill is spoiled by subsection (4) where it says:

without proof of the signature of the person purporting to sign it or that he was the proper person to issue it, the evidence in any legal proceedings until the contrary is shown of the matter so stated.

I should like to see this type of phraseology rearranged so that the judge can at least have the minimum of discretion, should there be offences under this section. It goes on in subsection (6) and this is the underlying feature of the Bill which first made it repugnant to me and not just Part V. I have dealt at greater length with Part V because of my suspicion, because of the different method of drafting this part of the Bill from the rest of the Bill, that it was introduced hastily and emotionally and not as a result of clear, precise statistics of experience in other countries.

Section 25 is a section which requires looking into. Section 25 (a) says:

"(2A) In a prosecution for an offence under this section for driving a mechanically propelled vehicle, at a speed exceeding the built-up area speed limit or a special speed limit applying in relation to the vehicle, on a road in respect of which the built-up area speed limit or a special speed limit is indicated by one or more than one traffic sign within the meaning of section 95 of this Act, it shall be presumed, until the contrary is shown by the defendant, that the limit so indicated applied in respect of that road at the time when the offence is alleged to have been committed."

"It shall be presumed until the contrary is shown." This, to my mind, on the same principles as those upon which I have been arguing, does require to be looked into again. It could be tidied up to conform with the matters about which I have expressed concern. I was glad that Deputy Dillon referred to section 27 (3) (b). My comment is that it is one of the worst provisions in the Bill. It says:

a person who is or has been in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle but not driving or attempting to drive it and who, in the opinion of the member, is committing or has committed an offence under this section.

This is something with which the Bill is trying to deal, something which nobody can prove. It is dealing with conjecture. That is all it can be. The court is supposed to decide on whatever may have been the guard's opinion at the time and that is very bad. Then we go on to section 28 which deals with blood tests. As I have said, the Constitution states that all people shall be equal——

Mr. James Tully

That is not what the Minister for Education said.

Mr. N. Lemass

The Constitution says it.

Mr. James Tully

Deputy O'Malley said something different.

Mr. N. Lemass

As I said, no two people act identically because of drink. In fact, a person has a varying capacity, depending on his activities, the strain under which he may be suffering, or what he may have been eating, or the functions he may have been attending, and it is impossible to say that the formula laid down in section 28 is a proper formula and to say that this shall be the legal definition of being drunk. You may not be drunk but you will be presumed to be drunk legally if you——

Mr. S. Dunne

Some people would get drunk on strong tea.

Mr. N. Lemass

I do not know whether tea would have that effect but certainly three liqueur sweets——

Mr. S. Dunne

I have often suspected Members of this House.

Mr. N. Lemass

As I said, it has been shown that three liqueur sweets taken by a British reporter gave the same reaction as nine glasses of English whiskey. I gave the quotation before Deputy Dunne came in. If he likes, I will give it again.

Mr. S. Dunne

Comic Cuts: three liqueur sweets! Where is that shop?

Mr. Briscoe

It is no advertisement for English whiskey.

Mr. S. Dunne

What they are doing to the drop of malt is nobody's business.

Mr. N. Lemass

It was in the Frank Ward column in the Sunday Press.

Mr. S. Dunne

It must be right.

Mr. N. Lemass

Three liqueur sweets were taken by a young woman reporter and when she breathed into the plastic breathaliser bag, the reaction was that she had taken the equivalent of nine small whiskeys. It goes on to refer to an experiment carried out by some judges. The Intoxicating Liquor Act very nearly provided that these sweets could be sold only in publichouses.

Debate adjourned.