Dáil Éireann debate -
Thursday, 18 May 1967

Vol. 228 No. 10

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

Question again proposed: "That the new section be there inserted".

Minister for Local Government (Mr. Boland)

As I was saying, the point we are discussing now is whether or not this new offence which I am asking the Dáil to create should be created. It is my proposition that we should decide that it be an offence for a person who is driving to have previously raised his blood-alcohol content to a level of 125 milligrammes per 100 millilitres. I am making that suggestion because it has been scientifically and definitely established that in the vast majority of cases, if not in all cases, anybody who raises his blood-alcohol content to that level is impaired in his capacity to drive a mechanically-propelled vehicle. I agree with Deputy Fitzpatrick that there may be cases of people who can take this risk and still not be impaired in their driving ability. There may, and there may not. But even experienced and practised drinkers cannot say with certainty that, because on nine occasions out of ten, they can take this risk without impairing their driving ability, on every occasion, irrespective of the conditions in which they take this risk, their driving ability is not impaired. Even if they could say that with certainty, I still think it justifiable to provide that they will not take this risk or, if they insist on taking it, that they will be deprived of the privilege of driving a mechanically-propelled vehicle on the roads.

Deputy Fitzpatrick says that this is inconsistent; the Commission recommended in favour of this being only prima facie evidence. That is so, but I think it is quite clear from the Commission's report that the Commission's advice was related to its assessment of the state of public opinion in 1963 and, whatever the state of public opinion in 1963, whether the public were or were not prepared to accept this as an offence, is, of course, a matter of opinion. I am quite satisfied that, in the meantime, public opinion has progressed and, with every day that passes and with every fresh fatality or serious accident on the roads, the public are more and more inclined to demand protection from those who take the terrible risk of putting themselves into a condition in which they are not fit to drive a motor vehicle.

I am quite satisfied that the public are now prepared to accept this new condition that such people will not drive a mechanically-propelled vehicle when they have taken the risk of raising their blood-alcohol content to this level. As I have said, I do not argue that everybody whose blood-alcohol content exceeds this level is necessarily unfit to drive, but I say it has been scientifically established that practically everybody in this condition is unfit to drive. In view of the risk involved in driving a motor vehicle in such circumstances, it is quite justifiable for us to provide that any person who intends to drive must not take the risk of raising his or her blood-alcohol content to this dangerous level.

Deputy Fitzpatrick argues that this is unconstitutional but, although he has placed such reliance on the Commission's advice to make this only prima facie evidence, at least in the initial stages, he has ignored the fact that the Commission have also said that the making of this an absolute offence would, in their opinion, not be in conflict with the Constitution. I should like to point out that the figures with regard to drink intake which Deputy Fitzpatrick quoted are minimum figures and were applicable to a man weighing 11 stone, who was fasting, and who drank the amounts mentioned very quickly. More realistic figures can be obtained from other sections of the report, as Deputy Fitzpatrick will discover if he looks through the report.

The Commission did not rule out the introduction of a system, such as I propose here, at some future date. They merely considered that, at the time of the report, it was unlikely to be accepted widely by the public, in their opinion. I think the situation has changed since then. The experience in Britain has shown that the use of the blood-alcohol level as evidence, but not as conclusive evidence, has had little effect, because, as the White Paper issued by the British Government in 1965 pointed out, conviction still depends to a large extent on evidence of the accused's manner of driving, or his personal appearance and behaviour, and because some courts still ask to have the blood-alcohol level translated into the amount of drink the driver must have consumed, it is an unreliable and misleading procedure at the best of times.

The arguments in favour of this are, as I have said, that at this level the driving ability of the great majority will be seriously impaired and the community is entitled to say that a person whose blood-alcohol level exceeds 125 milligrammes should not and may not drive. If this level is to be accepted as prima facie evidence only, then we will have to fall back on evidence based on clinical examination, observation, and so on. In other words, we will be back exactly to where we are at present. The whole intention of this section is to establish a definite test, which is not to be taken as evidence that a person is drunk, but as evidence that he or she is not in a fit condition to drive a mechanically-propelled vehicle. That is quite a different thing. If there are exceptional individuals who can put themselves into this condition, and still be fit to drive, I do not think we should worry about them, particularly when we remember that they may not retain this facility for the whole of their lives or may not retain it in all circumstances. Obviously their capacity will deteriorate with long practice.

As I said, so far as I am concerned, this is a fundamental proposition. One is either for or against. If it is rejected, we will be back exactly where we are now; these cases will be decided on the basis of clinical examination and observation.

Mr. Ryan

In a healthy society, people prefer to see a guilty man go free rather than see an innocent man convicted. That is a cardinal principle any healthy society will support. When we see the Government proposing to depart from that cardinal principle, we deem it our duty to warn where that departure will bring us. It will bring us to the servile State. It will create a society in which innocent people will be deemed guilty of having committed an offence. While we join with the Minister and with all who wish to discourage drunken driving, or driving which is impaired because of the consumption of alcohol, we feel that the wrong way to go about curing the situation is by convicting innocent people and treating as criminals people who have done no wrong. The Minister has stated that the optional procedure in Britain has not been successful. He did not say why. He might have added that it has not been successful in increasing the number of convictions, as though convictions were something to be boasted of. The Minister said that, in England, still, the behaviour and appearance of accused persons are a relevant factor in determining their guilt. I think that is perfectly unacceptable and that each person should be judged on the merits of his case. Depart from that and we automatically accept that the innocent are guilty.

I agree with Deputy Fitzpatrick when he spoke about this proposal being repugnant to human rights but I am not at one with him in the view that it is necessarily unconstitutional. Our Constitution has been declared by the courts to be a most imperfect weapon for the protection of fundamental rights. There are some rights which are spelled out in detail in the Constitution but even those are qualified by various factors such as "the exigencies of the common good" which has been described as a figure of speech the meaning and application of which can change from generation to generation. I think it can change a few times within a generation.

There are many fundamental rights which healthy communities take for granted and most of these are not spelled out in the Constitution at all. The right to life, the right to breathe: things like that are so part and parcel of nature that they are not in the Constitution. I think the right of an innocent person or of any person to be presumed innocent until proved guilty is fundamental but it is not specified in the Constitution. If it were, then some of the legislation passed by this House and the Seanad down through the years would long since have been declared repugnant.

People sometimes say something is unconstitutional when, in fact, they mean it is repugnant to their conception of fundamental rights. Let us not fall into the trap into which many of our predecessors fell of presuming that if we are wrong then the courts can correct us. The courts can correct us only within the scope of the Constitution. The courts cannot go outside the Constitution even where the courts feel the Constitution has not been explicit enough. The courts are confined by the verbiage and phraseology of the Constitution. They can go no further than that.

It is because I feel that the courts will be unable to find in the Constitution the power to condemn this particular proposal that I think we have a duty here not to adopt what the Minister wants us to adopt, namely, to condemn everybody simply because most people, within the limit he is providing, would be incapable of driving. On the Minister's own admission, there would be some people still incapable of driving who had not consumed that much. He should find some formula to persuade people not to drive who are incapable of driving, or unsafe, when driving after drink, if they drink, then not to drive.

Mr. Briscoe

There is one other part of section 28 on which I should like the Minister to answer one or two questions. It mentions "within three hours after so driving or attempting to drive". Here, section 28 is not as explicit as section 27 which begins as follows: "Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public place ..." Here, there is no mention of "a public place". Does that mean in the case of a man who has been out drinking and who arrives home at, say, 11 p.m.— maybe he has not been drinking at all —that, if somebody has seen him pass along some road and considered he was driving dangerously, then, at 11.30 p.m. for example, a garda could knock at his door and ask him to submit to a breathaliser test? Have the Garda the right to call at a man's house in such circumstances and to test him for having taken a drink? If, within three hours of being reported to have been driving dangerously, he does not pass the breathaliser test then that is it and he is brought down to the station. I should like clarification of that by the Minister.

Mr. T.J. Fitzpatrick

(Cavan): The Minister concedes that, in insisting on section 28 of the Bill as he has introduced it, he is going against his own Commission or his predecessor's Commission on Driving While Under the Influence of Drink which reported against the Minister's proposal. He goes on to suggest that some change has taken place in public thinking since the Commission reported on 15th May, 1963. As far as I can ascertain, the members of the Commission—any of them who have expressed their view-point on it in public, at any rate—think now as they thought then. I wish to quote the Reverend D.P. Kennedy, S.J., who is President of the Safety First Association of Ireland and who was a member of the Commission about which I have spoken. In the course of his address to CIE drivers at the Safety First Association's presentation of awards, the President of the Association. Rev. Denis P. Kennedy, S.J., welcomed the introduction of the new Road Traffic Bill.

Father Kennedy went on to say that, despite the fact that the present Road Traffic Act is but five years old a new Act becomes necessary if the findings of the Commission on "Driving While under the Influence of Drink or a Drug" are to be implemented. That Commission was established by the then Minister for Local Government, Mr. Neil T. Blaney, in September, 1961. One year and eight months later (May, 1963), the Commission submitted its Report to the Minister. The present Bill departs in at least one vital detail from the recommendations of the Commission. The Bill proposed to make it an offence to drive or be in charge of a vehicle while there is a specified concentration of alcohol in the blood. The Commission did not recommend that it be made an offence to drive while the blood-alcohol exceeded a certain level but that the specified level should be accepted as prima facie evidence that the accused person was unfit to drive. I hope that Deputies in Dáil Éireann will make very careful study of the difference between the two suggestions and find out just why the Minister proposes to depart from the Commission's recommendation on so vital a point. As a member of the Commission, I am aware of the serious deliberation and detailed discussion that determined the Commission to favour prima facie evidence of unfitness rather than make it an offence to drive in such condition.

I am quoting from a supplied copy of Father Kennedy's speech in November, 1966, at the presentation of Safe Driving Awards.

Donnchadh Ó Briain

Was this supplied to all Members of the Dáil? I did not get a copy of it.

Mr. Ryan

To those who wanted to read it.

Mr. Boland

It was before the Second Reading of the Bill.

Donnchadh Ó Briain

I am a member of the Safety First Association of Ireland.

Mr. T.J. Fitzpatrick

(Cavan): That, as Deputy O'Brien will admit——

Donnchadh Ó Briain

My name is Donnchadh Ó Briain. Please refer to me as Deputy Ó Briain.

Mr. T.J. Fitzpatrick

(Cavan):——is not the address of a reckless person. It is not the statement of somebody who has a disregard for the safety of the pedestrians and roadusers of this country.

Donnchadh Ó Briain

I never suggested it was. I only wanted to know the origin of the document.

Mr. Boland

The fact is that we do not know the origin of the document.

Mr. T.J. Fitzpatrick

(Cavan): Will you contradict it? Does the Minister——

Donnchadh Ó Briain

Was that circulated to every Member of the House?

Mr. Boland

The Deputy did not give the information he was asked to give. Supplied to whom?

Mr. T.J. Fitzpatrick

(Cavan): It was supplied to the leader of this Party under the signature of Denis P. Kennedy, President of the Safety First Association, as a speech made by him.

Mr. Boland

Last November.

Mr. T.J. Fitzpatrick

(Cavan): Last November.

Donnchadh Ó Briain

That is all I wanted to know, where it came from.

Mr. T.J. Fitzpatrick

(Cavan): Did the Deputy put down any amendments?

Donnchadh Ó Briain

No. I only wanted to know where it came from. I am a member of the Safety First Association and perhaps the Deputy is not.

Mr. T.J. Fitzpatrick

(Cavan): This is evidence that at least some members of the Commission think now, as they thought then, that the better way of dealing with this problem of drink and driving, which I readily admit is a problem which needs to be dealt with, is to declare this certain percentage of alcohol in the blood as prima facie evidence of being unfit to drive and to impose on a person with that percentage of alcohol in the blood the obligation of satisfying a court of law that at the time he was driving, notwithstanding the amount of alcohol he had taken, he was fit to drive. The evidence he would have to produce would be the evidence of an expert, of a medical practitioner, who would say that from tests carried out on this individual he was satisfied that he was fit and well able to drive.

We cannot deal with this amendment or with section 28 without having a look at the following section. Section 28 proposes to make it an absolute offence for a person to consume so much alcohol that the concentration of alcohol in his blood exceeds 125 milligrammes to 100 millilitres of blood. It follows that in order to ascertain whether that concentration is there or not, certain tests must be carried out, and section 29 gives us those tests. It imposes an absolute obligation on a man who has been arrested to give a specimen of his urine or of his blood: in certain circumstances, he must give a specimen of his blood. It goes on to say that a person who refuses to give a specimen of his blood shall be guilty of an offence under section 29 which carries the very same penalties as drunken driving at present. A man who refuses to give a sample of his blood for analysis shall be guilty of an offence, which carries with it the penalties of heavy fines, imprisonment and disqualification.

If my amendment is accepted, we can get over that difficulty. All Members of this House, with few exceptions, will agree that it is undesirable that a man should be compelled to produce evidence to convict himself, that a man should be compelled to give a sample of his blood, and that if he does not——

Mr. Boland

That is a different section altogether.

Mr. T.J. Fitzpatrick

(Cavan): I appreciate that. I said we cannot deal effectively with section 28 without looking ahead to see what flows from it. If you get rid of section 28 and accept my modification, section 29 will not be necessary in its present from. I was saying that most Members will agree that it is undesirable that a man should be made to produce evidence to convict himself and should be liable to conviction, fine and imprisonment for failure to give a specimen of his blood. It is not a trickle of blood out of his ear which is required but a couple of ounces of blood which will be extracted by a minor surgical operation. Many people with the best will in the world would not be capable of giving that amount of blood without fainting. That is not their fault; it is the way they are made. My suggestion is that section 28 be amended to make it prima facie evidence and to shift the onus of proof on to the accused. If it is accepted, you can get over the grave objectionable feature of section 29 which makes a man convict himself and makes him liable to imprisonment for failure to do so.

I suggest that the failure of a person under section 29 to give a specimen of his blood should not be an offence at all and certainly should not be an offence carrying the penalty of imprisonment. This would shift on to him the onus of going into the witness box and producing satisfactory evidence that he was capable of driving the car on the occasion. If this solution is accepted, it will get over these two very difficult sections. There are a number of lawyers in the House at present and I want to repeat what I said before, that in the past failure to convict a person charged with driving a car while drunk was usually due to the fact that the State could not establish a prima facie case against the accused, could not place before the court sufficient evidence to put the onus on the accused to show that he was fit to drive. That has been my experience, speaking as an advocate, and I am sure it has been the experience of many others. Once the onus of proof is shifted on to the accused person to show that he was sober, then unless he was really and truly sober, he has no chance of proving it.

That is what I am trying to do here, to shift the onus on to the accused person in the circumstances, one, in regard to the concentration of alcohol in the blood complained of and, two, in regard to his failure to submit to a blood test. In either of those cases, it is over to him to produce satisfactory evidence to the court to prove that he was not a drunken driver, that he was not a danger to other road users, that he had complete control of the car and was able to drive it properly and safely in a public place. In putting forward this solution to an admittedly difficult problem. I am giving the Minister an alternative; I am not simply shooting down the Minister's proposition without saying what should be acceptable in its place.

Mr. Booth

I would be the last to support any legislation which would endanger the innocent in any way, but in this case anyone who wishes to protect himself from proceedings under this Bill when it becomes an Act has a very obvious course open to him, namely, to take no alcohol before driving. It is as easy as that. If a driver, gratuitously and freely of his own will, takes alcoholic liquor before driving, he is taking a risk to himself and he is also taking a risk which will involve other people. It is not just a matter of being kind to the innocent. We are dealing with human life and the danger to life and limb. It is far better that we should face the fact that it is in the interests of the whole community that people should not drink when taking control of a mechanically propelled vehicle on the road or that if they do, they should, quite properly, to my mind, leave themselves open to proceedings.

Deputy Ryan talked about the optional system in England where he said it was much preferable to try each case on its merits but the trouble in dealing with cases such as this is that it has to come in the end to a matter of opinion, the opinion of the garda that the accused is unfit to drive and the opinion of a medical practitioner that the accused is fit to drive. It was in the face of this conflict of opinions that the courts, properly, I think, had to say: "We shall give the benefit of the doubt properly to the accused; we cannot establish the facts and so the accused must have the benefit of the doubt," and therefore the prosecution failed, even though the judge or justice might have more than a suspicion that the defendant was in fact guilty of the offence with which he was charged.

We must come down to some sort of standard and I am not aware that Deputy Fitzpatrick or Deputy Ryan ever made any objection to speed limits on the ground that some people might be improperly convicted on the charge of exceeding the speed limit, even though they were not driving dangerously. I think it is agreed that it is not necessarily dangerous driving to drive at 45 mph in a 40 mph area. It may be dangerous or it may not. In certain circumstances, it might possibly be the case that a driver would be driving dangerously at 20 miles an hour in a 40 mph area. We must try to establish some standard and so, rightly or wrongly, and to my mind, rightly, we say that in certain areas motorists must not exceed a certain speed and if they do, they are guilty of an offence.

It is quite easy, if you keep your eyes open and restrain your impatience, to avoid exceeding a speed limit. Here in section 28 we have made it perfectly clear that we are not out to establish a charge of drunkenness. What we want to establish is that a standard has been set up for the amount of alcohol in the blood which can safely be carried. If you like, that is an arbitrary figure. Personally, I think there is considerable evidence to show that the proportion of alcohol permissible in the blood is, if anything, rather on the high side but I am not unduly worried about that because there is nobody who will readily be able to ascertain in advance what will be the effect on his blood of the consumption of two small ones, two large ones, three pints or so on. It depends on so many other factors. We cannot say one would be quite safe in having three pints before driving. That is very good because if a motorist is in doubt whether he may have three pints or two pints or one pint, I think that is a very strong inducement to him to have no pint at all until he gets home, if he must have one.

We must get away from the uncertainty of the law as it stands. We must get away from the clash of opinion, whether lay or medical, as to the suitability or unsuitability of being in charge of a vehicle. I suppose it would be ideal if you could readily establish a standard of ability to drive but that is just not possible. I do not agree with the Commission in their suggestion that the alcohol content of blood should be merely a prima facie indication because if that is all it will be, we shall be back to a clash of opinion again. It is far better, I think, that we should take the bull by the horns and say: “There is a standard and if you are found to have exceeded that alcohol content in your blood, you have committed an offence. It does not necessarily mean that you are drunk but you will have committed a technical offence for which you will be punished.” I do not think that is any infringement of human liberty or anything else, when the obvious remedy lies in the hands of the individual. If he wants to protect himself against proceedings, he just lays off the drink when he wants to drive. It is as easy as that. It is not a thing a man can be talked into unintentionally; he drinks only if he wants to drink. If he wants to protect himself, let him lay off the drink in his own interest and in the interests of other road users. We must not be concerned with considerations of convenience or otherwise. Actual life is at stake and even one life is well worth saving.

Mr. James Tully

I feel inclined to agree with much of what Deputy Booth has said but I think that even what he suggests is not necessary, if what we are told is correct, because the alcohol content laid down here is, I understand, almost double that required in certain continental countries. If that is so, a man would need to be fairly well soused before he would be in the position that he could be convicted of being under the influence.

Mr. N. Lemass

That is not right.

Mr. James Tully

The Deputy can prove that afterwards. I am only making a point and giving the facts as I see them. I am not speaking from experience. One of the things I am not happy about is section 28 where it is suggested that three hours afterwards— and the Minister on Second Reading of the Bill——

Mr. Boland

I think the Deputy is mistaken.

Mr. James Tully

If the Minister says he did not say that——

Mr. Boland

No; I have here what I said.

Mr. James Tully

My recollection of what the Minister said was that it was in order for somebody who suspected a person of being under the influence of drink while driving a motor vehicle to go to his house within three hours——

Mr. Boland

I think the Deputy is mistaken. Deputy Lemass said that and I said it was not correct.

Mr. N. Lemass

I said it.

Mr. James Tully

My recollection was that the Minister agreed that could happen. If the Minister now says that cannot happen, I should like him to explain how, or in what way, such a person is protected under this section. I have no desire to protect the drunken driver who is in charge of a vehicle and who, because he is under the influence of drink, is a menace to every other road user and a menace to himself, but I should not like the situation to arise in which a person who had been driving a motor vehicle in a perfectly normal manner and who, after returning to his home and having a few drinks, could, within three hours, be challenged by a garda to prove that he was not drunk. That, in effect, appears to be the way in which section 28 can be read. Now the Minister has a different interpretation of it and I should like to hear it.

Mr. Boland

Section 28 is an amendment of section 49 of the other Bill.

Mr. N. Lemass

You have to read it in conjunction with the Principal Act.

Mr. James Tully

Unfortunately, Bills have been passed through this House before and when Deputies were talking on them they were under one impression but subsequently even district justices took a different interpretation from that which any Deputy in the House thought would be taken. That is why I would like to ensure in regard to this Bill that sort of thing will not happen again.

Let me be quite definite on this. As far as this Party are concerned and I am quite sure as far as Members of the House in general are concerned, it is agreed that the man who drives under the influence of drink should, in fact, be held responsible. I cannot agree with the argument made by the Fine Gael Deputies to the effect that a man should not be forced to give evidence against himself. In fact, if he is charged with drunken driving at present the fact that he is drunk and his reactions will be counted as evidence against him anyway. As I am not involved in the legal end of this, I am not going to try to interpret the niceties which they apparently feel would turn the whole situation. If the Minister is satisfied that this section does not catch the person who has his drink after he has stopped driving then I feel the section as it is a perfectly reasonable one.

Mr. T.J. Fitzpatrick

(Cavan): Let us be clear about this. I do not think there is anybody in the House who wants to encourage drunken driving.

Mr. Andrews

At the same time, we do not want a joyless society.

Mr. T.J. Fitzpatrick

(Cavan): I do not think there is anybody in the House who approves of anybody getting into a car and driving it while he is unfit to drive due to the consumption of alcohol. Nobody would stand over that and nobody is trying to defend it. Deputy Dowling came in here and spoke about the massacre of infants and elderly people in the streets of this country. Nobody stands over that. Nobody is trying to defend it but we want to ensure that people who are able to drive and who are not drunk, whose judgment is not impaired as a result of the consumption of intoxicating liquor, are entitled to drive. I think Deputy Booth got to the heart of this matter when he said that if the Bill went through the only safe precaution for any motorist who was driving was not to drink. That is one point of view and Deputy Booth is quite entitled to it.

I do not believe the country will accept that. I do not believe that if you pass a measure prohibiting a person from driving if he has any alcohol taken it will command public respect or that it will be observed. Assuming you are going to let people drink something, that you are going to allow people to drink in moderation and to drive you are in my opinion imposing an impossible burden on them by this section because, as we have been told, and it is scientifically admitted, the same quantity of alcohol will react differently on different people. A given quantity of alcohol may produce a level of 125 milligrammes to 100 millilitres in one person but it will not produce any such level in another person. How is a man going to know?

Mr. Booth

That is just the very point. He will not know.

Mr. James Tully

He will have to have a breathaliser of his own.

Mr. T.J. Fitzpatrick

(Cavan): How is a man to know whether he has consumed too much alcohol? How is he to know unless he submits himself to various tests all over the place? He may be a perfectly sober man.

Mr. Boland

Even if he does take alcohol it will depend on his clinical condition at the time.

Mr. T.J. Fitzpatrick

(Cavan): We may then have a perfectly sober man perfectly capable and competent of exercising control over a car. He may be driving his car in a perfectly normal manner but under this section he may be disqualified from driving for 12 months at least. That is not reasonable and it is not necessary. You are making the consumption of alcohol prima facie evidence and it is going the wrong way because you are then going to shift on to the accused person the very considerable onus of subjecting himself to very considerable medical evidence that he has a certain level of alcohol in his blood but that his judgment and his ability to drive were not impaired. You must either do that or accept Deputy Booth's suggestion and say that you must not drink if you are driving. That will commend itself to a lot of people but it will not commend itself to a great many others. I do not think it would command respect in this age when a car is really such an important thing in everyday life. If the Minister would, even at this late stage, agree to reconsider this matter without any loss of face and prestige and get on the Statute Book a measure that will do its work and be respected and which will not really create an entirely new position as far as our criminal code is concerned, he will be doing a very good thing.

Mr. N. Lemass

I should like to deal with the three hour position but first of all I should like to know if my amendment was moved or may I move it now?

Mr. James Tully

The Minister said it was not moved.

Mr. Boland

That was on a previous section.

An Leas-Cheann Comhairle

At the moment we are discussing Deputy Fitzpatrick's amendment, No. 13. We will come to the Deputy's amendment later when we have disposed of this one.

Mr. N. Lemass

The question of the three hours was referred to, so I will just make a few general remarks on it. As a result of the Second Stage speech, I read this section in conjunction with the Principal Act and it is now clear from that that the fear which I expressed on Second Stage, and which was expressed by Deputy Tully and Deputy Briscoe this afternoon, does not arise. There are some other matters in connection with this which I can take up when moving my own amendment.

As a result of the Minister's reply on Second Stage, I re-examined the Bill in the light of the fact that the Minister says we are creating a new offence. This offence was not that you were drunk. It is evidence, so that if you have so much alcohol in your bloodstream, you are guilty of a new and separate offence. On that I should like to go along with Deputy Booth's analogy about speed limits. If you are driving at 45 miles per hour in a 40-mile zone and no danger to anybody, you have committed an offence under the laws applying to that particular section of the road. In the case of a man who breaks the speed limit, a man who is convicted of dangerous driving, the penalities are quite different.

The whole purpose of the amendment I put down is to say that I will accept this Bill on this basis; if you have now a new offence and this offence is something less than being drunk, then penalties must be something less than those attaching to conviction for drunken driving. Then, being found guilty on this evidence means that this can be given in evidence, or, as Deputy Fitzpatrick's amendment sets out, if a person has to give samples of his blood, urine or breath, the findings can be used in evidence in any subsequent prosecution, and to make it an offence to refuse to give these samples is contrary to the old concept of the Constitution and contrary to all the precepts of justice we have in this State, that a man is innocent until he is proved guilty.

There can be good reasons for a man not wishing to take such tests. I, for one, would not undergo a breathaliser test because any evidence I have been able to obtain in regard to this test has shown that it can be totally inaccurate and I would not take a risk with a machine that is not reliable. I certainly do not think I should take such a risk. In live cover in a television programme, this test was proved to be inaccurate. I would have great reluctance to submit myself to a blood test. I suffer from allergies. I had an accident some years ago and I had to have a tetanus injection, and I suffered as a result for some two or three weeks. I am also allergic to sticking plaster and I do not think I would submit to any doctor. I would want my own practitioner who understands my particular case.

As I said on Second Stage, I doubt if the Constitution would deny me the right to refuse to urinate in any police station at the behest of any garda. Between the Minister and Deputy Fitzpatrick, we have a problem. Deputy Fitzpatrick suggests that there should not be a new offence but that evidence would be taken which could be used in a case of drunken driving. The Minister, on the other hand, wants a new offence. I am prepared to accept the Minister's argument for a new offence, provided the penalties for that offence are lesser than the penalties for the offence of drunken driving. Having got that evidence does not prevent the garda taking steps to proceed with a more serious charge at a later stage.

If we accept the Minister's point of view for a new offence then I say the penalties are completely out of proportion because a man can be perfectly sober and perfectly capable of handling his car, in carrying on his normal social routine, and he can be stopped and found guilty of a new offence and subsequently found guilty in court, if the content of alcohol found in his blood, if he submits to the test, can be produced as evidence to show that he had so much alcohol in his blood. It is up to the person so charged to show that even if he had this amount of alcohol in his bloodstream he was perfectly capable of driving, and to ask for and be given the right to go through other tests to establish whether he was capable of driving a car.

I think the laws already in existence are adequate. I believe the accident rate here and the death rate on the roads per road mile for everybody are among the lowest in the world. Trying to copy countries which have brought in legislation which is not respected and not properly observed by the people creates tension. International statistics have shown that where there is tension in a society, the accident rate goes up in relation to that degree of tension. I suggest to the Minister that a driver drunk or sober should be regarded as innocent until he is proved guilty. If a man refuses to give a sample of his blood, urine or breath, this can be taken as evidence and then the court can form its own conclusion. But to say that to so refuse is an offence will not stand up on constitutional grounds. I believe that somewhere between what the Minister proposes and what Deputy Fitzpatrick proposes, there is a solution. If necessary, we should spend a great deal of time here to try to find where that solution lies.

Mr. Boland

I shall deal with the points raised by Deputy Ryan first. He says that he believes that everybody would prefer to see a guilty man go free than an innocent man convicted. The point is that there is no question whatever of this section resulting in an innocent man being convicted. This is not being put forward, as I have said on a number of occasions, as a test for drunkenness. It is not to establish that a man is a drunken driver. A person convicted of having a blood-alcohol level exceeding the maximum will not necessarily be convicted of being drunk but will be convicted of this new offence. That is the fundamental thing.

From the enactment of this Bill it will be an offence to raise the blood-alcohol content to the level of 125 milligrammes to 100 millimetres of blood and then proceed to drive a mechanically-propelled vehicle. In other words, a person who drives a car after he has raised his blood-alcohol content to this level will be committing an offence and will be deemed to be unfit to drive a vehicle. Such a person may be innocent of being drunk in the sense accepted at present, but that is not the point. He will be guilty of this new offence.

With regard to the question of this being an interference with fundamental rights, I maintain that nobody has a fundamental right to drive a car. I maintain that nobody has a fundamental right to do so any more than he has a fundamental right to possess, or to use a firearm, or to make his own whiskey. These things can be only done under licence, and very properly so. I am asking the Dáil to say that a person who takes this risk of raising his blood-alcohol content to this level may not drive a mechanically-propelled vehicle.

Deputy Fitzpatrick asks why I have departed from the Commission's recommendations. I said that it is a scientifically established fact that the vast majority of people, if not, indeed, everybody, will not be fit to drive a mechanically-propelled vehicle after consuming alcohol to such an extent that the content in the blood reaches the level specified here. Because of that fact, I consider it my duty, as Minister for Local Government, to ensure that people who are in that position will not drive, whether drunk in the normally accepted sense of the word or not, and I quite concede that they may not be drunk in the normally accepted sense of the word. The proposal by Deputy Fitzpatrick will, for all practical purposes, leave the situation as it is: it will be a matter for clinical examination, or observation, as to a person's behaviour and, then, it will be on such evidence that cases will be decided.

What I am asking the Dáil to do here is to create this new offence of raising the blood-alcohol content to this dangerous level and then proceeding to drive. Deputy Fitzpatrick said he does not approve of anybody who is unfit driving. The question to be decided here is when is a person unfit? The fact is that unfitness to carry out this very serious action of driving a car is not always visually detectable: an experienced man may be able to conceal it and, even though he is not making any definite effort to conceal it, the fact is an experienced drinker may not show any signs of his driving ability being adversely affected, his ability to drive, as distinct from his ability to talk, walk or perform any of the other normal actions. But it has been scientifically established that in practically all cases a person who raises his blood-alcohol content to even a much lower level than this will be adversely affected.

Deputy Lemass suggests that because this is a separate offence, it is necessarily also a lesser offence and there should be a lesser penalty for it. I do not agree; the danger arising from committing this offence is the same as the danger arising from driving a car while drunk: the possible outcome for the driver himself, his passengers and for innocent members of the public is the same. It is equally necessary in the public interest that this offence of consuming alcohol to this extent should not be committed. Therefore, I think the penalty must be the same. The only country in Europe which has an arrangement such as Deputy Lemass suggested is Sweden and there the level for the lower offence is only 50 milligrammes per 100 millilitres. But the offence we are proposing to create here is a blood-alcohol content of 125 milligrammes per 100 millilitres.

I have admitted here that it may be there are some people who would be fit to drive at that blood-alcohol content level. I am saying that only because it may be; but it is not by any means certain that anybody is fit to drive at this blood-alcohol content level. It is not certain that there is anybody whose driving ability will not be impaired at this level, and the British Medical Association said it is extremely doubtful if anybody with a level of 80 milligrammes or more could drive with his normal ability. Therefore, in other words, it is doubtful if there is anybody who can take this risk and still drive safely.

Deputies Briscoe and Tully referred to the question of the test being carried out three hours afterwards. The difficulty here is that this section is an amendment of section 49 of the Principal Act. Therefore, it should be read only in conjunction with that Act, and section 49 of the 1961 Act does relate the offence to its taking place in a public place. I dealt with this on Second Reading. Deputy Tully seemed to think what I said on Second Reading was to the effect that the garda could test somebody two or three hours after the alleged offence had been committed. For the benefit of Deputy Tully, I think I should quote what I did say; it is in Volume 227. No. 6 of the Dáil Debates, at column 1029:

Deputy Lemass also dealt at length with what will happen to a person who drives home at 11 o'clock and after he arrives home takes a few drinks. He seemed to think that a garda could forcibly enter that person's house at 1 a.m. and require him to undergo a preliminary breath test and possibly even arrest him for this offence of driving while under the influence of drink although it was two hours previously that he had, in fact, driven home. This, of course, is completely out of the question. A person can he required to undergo a preliminary breath test only if he is in charge of a vehicle in a public place. A garda, therefore, cannot come to a man's house some hours after he has been driving and ask him to undergo this preliminary test and, in fact, in such circumstances a garda would not have any power forcibly to enter the man's house.

Therefore, I think I did make it clear on Second Reading that this offence is clearly related to driving, or attempting to drive, in a public place, but there is no question of a man being tested two or 2½ hours after he arrives home.

Mr. N. Lemass

Having listened to the Minister, Deputy Fitzpatrick's amendment appeals to me now more than the Bill, as it stands: Take the case of a man who has a certain social habit and, for the past 20 years, was in the habit of meeting friends, say, once a week—be he playing cards or just in the local pub—and has consumed, one day a week, every week, for the past 20 years sufficient drink to make him guilty of this offence, has driven home and is perfectly capable of driving his car, not affected in any way whatsoever, he has caused nobody any trouble and has been doing this for years and years. Now he is stopped. He is not found to be drunk; he is perfectly competent to drive his car but he is guilty of an offence of having a certain quantity of alcohol in his blood stream, and he loses his licence.

While I go along with the Minister in creating a new offence, I think we can only go along with him, provided this offence is a slightly less serious one than that of being drunk; but to make this compulsory without a person being found guilty of being drunk is totalitarian nonsense, in my opinion, if we are going to create this new offence. The Minister clearly said in his statement that the man may not be drunk at all : he may be perfectly competent to drive his car. He said it is highly unlikely that most people would be able to, but certain people, with experience and so on, might be perfectly competent to drive a car.

Mr. Boland

No, I did not.

Mr. N. Lemass

I understood the Minister to say that a person could be found guilty of this new offence without being found guilty of being drunk.

Mr. Boland

That is right.

Mr. N. Lemass

Here is a man who is not drunk but who is guilty of this new offence. I will go along with the creation of this new offence but I do believe it is a lesser offence than being drunk and incapable. Would the Minister look at it from that point of view?

Mr. Boland

No; it is just as serious an offence.

Mr. M. O'Leary

There is a 20 year training period to get in that condition.

Mr. T.J. Fitzpatrick

(Cavan): I should like to take the Minister up on one point. The Minister says that if my amendment is accepted, we will be back to where we were before this Bill was introduced. With all respect, the Minister knows that this is not so. As the law stands at the moment, the onus is on the prosecution to prove that a man is drunk within the meaning of the section, that his judgment is impaired. If my amendment is accepted, when this Bill becomes law, the onus will be on the accused person to prove that he is sober, that his judgment has not been impaired and that he is able to drive a car. I ask the House to agree with me that that is a substantial change in the law, that it is a substantial shifting of the onus and that it will make it much easier for the State to get a conviction and much more difficult for a guilty person to get away, if not impossible.

Mr. Boland

It has not had that effect in Britain.

Mr. T.J. Fitzpatrick

(Cavan): How long has it been in operation in Britain, if at all?

Mr. Boland

Three years.

Mr. T.J. Fitzpatrick

(Cavan): I am putting it to the House that it is a substantial change in the law and I suggest that it is obvious to anyone who has experience in the courts of this type of prosecution that it is bound to make it much easier to get a conviction and much more difficult to get an acquittal. It seems to me to be fundamentally wrong to create a serious offence which carries very heavy penalties and at the same time, to leave the law that a man will not know whether he is in fact committing an offence or not until he has been arrested and tested, and that is what the law will be. It is all right for anybody to go in behind Deputy Booth and say: “If you drink, do not drive”. That is a point of view. You at least know where you stand and the people who are going out know where they stand, but if this measure here becomes law, you say: “Yes, you can drink at your own peril”. One would nearly want the equivalent of an accurate breathaliser attached to the motor car of each person who takes a drink so that when he is stepping into his car, he can check and see how he is going on.

Deputy Tully has left the House but he seemed to have got the impression that in order to produce the concentration of alcohol complained of one would have to have spent a pretty debauched evening, one would have to have consumed a tremendous amount of alcohol. That is not so because 2¾ pints of stout in some people will——

Mr. Boland

And in some circumstances fasting and drinking quickly without moving his Adam's Apple.

Mr. T.J. Fitzpatrick

(Cavan):——will create the concentration complained of, and, I think, four small whiskeys. We should be realistic about this thing. This, I am sure, is a continental introduction here and, as I was forced to say on Second Reading, another example of a continental Act to deal with Irish situations which did not work was the Succession Bill. It had to be torn limb from limb and section from section and part from part and recast or it would have put the Government out of office. There is adequate time yet to discuss this in a realistic way and to reconsider the whole thing.

Major de Valera

There must be a certain amount of confusion about what is involved here and it might be no harm to get away from, first of all, the misconception that we are dealing with what one might call drunkenness in its moral or any other aspect. We are dealing solely with the question of ability to drive and the safety of the public, and, indeed, of the person drinking.

I would go along with Deputy Booth and we must accept the point which the Minister makes in the Bill that this is a separate offence. Is it right that there should be this offence? Personally I feel it is. It removes all doubts. It is as simple as this: the onus is on a person who drives a motor car to be in a fit, responsible position for so driving; if he takes the wheel of the car the onus is on him to be capable of performing the duty he has undertaken, namely, the duty to drive. As the Minister points out, there are no constitutional rights otherwise. Our question, therefore, is simply how to enforce that duty. If the person has a duty and it is a definite duty of responsibility here, there is no use reducing the problem afterwards to the whole question of opinion, to getting confused with moral problems in regard to drunkenness. A fairly simple test is needed.

It is known that if the alcohol content in the individual goes beyond a certain level, on the average the driving capacity of the person will be impaired. I see nothing wrong with taking that average level and making everyone conform to it as a standard. As Deputy Booth said, every person driving a car has a duty to the rest of the community. It is his duty to conform to the standard laid down. I see no case for all the arguments that are made about whether he is on it, or the moral rights or wrongs or whether in the particular case he is capable of driving or not. It is a question of protecting the community in the particular and on the average, and it is fair to have an average standard.

My own misgivings about this Bill arise in regard to another section. Since the Second Reading, I have tried to look into the matter of the breath tests. Projecting the argument that an average standard is needed and that no apology is needed for making people conform to that average standard, if one accepts that, then I can equally see no objection to accepting an average standard test. It is beside the point to argue, as Deputy Fitzpatrick has been arguing, whether in any particular case the man in question was capable of driving or not. That approach involves one in a lot of specific argument, a lot of clouding of the issue, and brings one to arguments like Deputy Lemass's about penalties. The net result of that must be a lot of time spent and energy wasted on the part of the authorities and the ultimate job of keeping the roads safe suffering as a result. If there is to be an average standard, then have an average test.

To my mind, if the Minister has erred at all in regard to this Bill, it is in not being firm enough to abide by the test he is prepared to put there in the first instance. Like Deputy Fitzpatrick, I find it difficult to argue this point without going on to later sections and I do not want to do that now. The development of what I am saying now will have to come when it comes to blood and urine tests but in the meantime, having set a standard of alcohol which is very high by comparison with many countries which have adopted it, it seems to me that the adoption of a standard average test such as this will work out for the best, by and large.

There is a suggestion I should like to make. I know it is in anticipation, but perhaps the House will allow me to make it to indicate my line of argument. Deputy Fitzpatrick is arguing in this amendment that it should be prima facie evidence. I should like to have this offence as the Minister has it. I agree completely with Deputy Booth's line of argument on the basis of the evidence of the breathaliser test, and making that test sufficient for the prosecution. Instead of having the mandatory confirmatory provisions there are in section 29, I would have the breath test, and modify section 29 to be a right for the defence to invoke the provisions of section 29, if they so wish. I shall argue that in more detail on section 29.

I would certainly give the accused the right to rebut, but only in the sense of a voluntary choice to rebut. The first test would be sufficient for the offence in question. Anyone can read what I said on Second Reading. I had considerable misgivings about a number of problems. We did not get much time to consider this matter when it came up in the first instance. Having considered it since, I think this approach is better than the prima facie case.

The weakness in Deputy Fitzpatrick's amendment is this. When you bring it up, you are back to the individual argument as to whether the person at the particular time was or was not capable of driving a motor car responsibly. As the Minister said, there are no fundamental rights involved in driving a car that demand that approach. If there are not, it seems to me that you will bring about a lot of legal complications and uncertainties. You will certainly defeat any attempt to have uniformity. I have seen what happens in the courts, the same as Deputy Fitzpatrick. All too frequently this type of situation results in glaring injustices, and manifestly guilty people often get away with it, and possibly in a case where there is merit—I will not say a case that is innocent—the person is caught. In this way, you will certainly get more fairness and equity. Deputy Fitzpatrick will agree that in the last analysis, we are back to Deputy Booth's position. I agree with Deputy Booth in that.

Deputy Lemass mentioned the question of penalties. Again, there are practical difficulties here. In theory you might imagine that a person who is drunk and is guilty of something heinous deserves a certain punishment and a man who is blind drunk deserves a worse punishment. That is the moral or academic way to approach it, but the fact of the matter is that a man whose judgment is impaired even if he is only slightly drunk is every bit as big a menace as the man who is blind drunk. In fact, if he were drunk and incapable he would be safe because he could not drive.

Mr. Boland

He would be in the ditch before he could hit anything.

Major de Valera

Distinctions of that nature though they appeal at first flush are false from the point of view of what we are trying to do here. We are trying to enforce the rights of the community and of every citizen, and we are doing it on the principle that a person who drives a motor car assumes a duty to every other person with whom he may come into contact in the course of his driving. This places a duty upon him to take care, a criminal duty in the sense that if he does not carry out that duty he is behaving criminally. That is the simple principle involved. I think that distinction is false from the beginning.

The practical consequences of making this distinction would be disastrous. You would never convict a man of the other crime no matter how bad the case was. The people who have to take decisions which are hurtful or adverse to another human being are decent people. When a judge or a justice has to impose a sentence it is not a pleasant task, and being a normal being he will be inclined to take the merciful point of view. Advocates will not be wanting, and skilled advocates can play on the natural good feelings of the person who has to make the decision. All these factors come into account and if you present an alternative on a plate to the person who is making the decision, the alternative will be taken.

Let us be logical. If you have a distinction between the penalties you end up by abolishing the other offence. Then you are back to square one. How serious is this crime of driving under the influence of drink? How serious and how dangerous is it to the rest of the community? Deputy Fitzpatrick's amendment has not got the merit that it appears to have at first sight. The Minister's case appears to be much stronger than it appears at first sight. As I say, I would take my place with Deputy Booth on this.

I do not know Deputy Fitzpatrick's attitude and how seriously he is taking this. Is he arguing it on the basis of what would be better, or do the Opposition feel so strongly about it that they will take a positive line? I will be interested to know that.

Mr. N. Lemass

Deputy de Valera seems to be under a misconception as to my attitude. I said on Second Stage that no research in relation to the problem which we are now trying to deal with was done in this country. I said that for a long time after the Bill was circulated the Government were not able to give me any reliable statistics which could be used in connection with this legislation. I still believe that the Government and the Minister were tempted to put this section in as a result of temperance pressure groups out of emotion rather than out of clear study and conviction. I still think the Minister was wrong to deal with the Bill in this way. Penalties have cured nothing. Whether there is compulsory suspension of a licence or not, this will not change the accident rate resulting from drink one iota. If we are to have a new offence that is a lesser offence than the one now on the Statute Book, I ask the Minister to give the judge the discretion to suspend a licence or not to suspend it, if he feels suspension is not justified. Surely that is a reasonable request?

We can find fault with the breathaliser. I would go on for half an hour telling about it, about cases in which it did not work, about the taking of liqueur sweets which became caught in the teeth cavities and gave a reaction as if the person had four large whiskies. A live test was done on our television network by one of the reporters. He drank one glass of whiskey and he would have been found guilty of an offence. This was performed on the screen for the entire country to see. I understood the Minister to say that the breathaliser was being used as an indication as to the condition of the person but would the principal thing not be the blood and urine tests?

In the blood test, as well, it has been found that if the needle used for taking a blood test has been kept sterilised in alcohol, even if the person has not had a drink at all a positive result will be obtained. This has been established by medical associations. I should like the Minister to tell us what effect has carbon monoxide poisoning on the blood and urine and can a test disclose clearly that the condition was caused by carbon monoxide poisoning? I should like to be told at least that these things have been cleared up. Then we might have some evidence that the necessary research was being carried out and not be subject to pressures.

Dr. Gibbons

The first thing we seem to be arguing about is the introduction of this new offence. As a matter of fact, it is not new because it is already in the Road Traffic Act. Then there is the question of the speed limit. Already the State has decided that there should be speed limits and perhaps it was suggested that anyone driving at 30 miles an hour could not injure anyone and perhaps people driving at more than 30 miles an hour felt they were being victimised. We have all got to accept these speed limits in the interest of the safety of everybody and I do not think it is a good defence in court to say that one is capable of driving at 50 miles an hour with safety within those limits.

I feel that the same principle lies behind the introduction of this alcohol test. It has been alleged that sufficient research has not been done. Essentially, this is a medical problem, and most medical problems, fortunately or unfortunately, take the research done in foreign countries. The figure we have accepted is somewhat higher than that accepted in most countries. In that way we have erred on the side of leniency. The most recent information is about the breathaliser. The breathaliser reading is low, certainly lower than the actual blood-alcohol content. This again would be in favour of the person being tested. These things weigh in favour of the person who might be charged. I have, however, one fear. If we establish this 125 milligrammes alcohol content as an offence and a person who was obviously drunk goes into court and the evidence is that the alcohol content was only 100 milligrammes, can this be used as a defence? Can the judge be persuaded that this man was not drunk when the doctor and everybody else concerned says he must have 125 milligrammes per cent? Is there not a prima facie case that he was not drunk?

Mr. Boland

The other offence would still be there.

Dr. Gibbons

I agree with Deputy Lemass and others that the penalties are a bit severe for this new charge. In the ordinary course, a person being charged in such circumstances will be charged with careless driving, dangerous driving and driving while drunk, and though his blood-alcohol content was more than 125 milligrammes per cent, the person trying the case, be it justice or judge, will have to separate all those charges, probably finding the person not guilty on some of them but guilty on a particular one. I think it would be a very harsh penalty if the judge found that the person was not actually drunk, but, finding he had a certain percentage of alcohol, he had to suspend the licence. I presume this would be mandatory on the justice or the judge under the Principal Act, which I have not got before me. If that is the position, it seems to me that for this specific offence of having an alcohol content of 125 milligrammes, the person trying the case should have some discretion.

Mr. T.J. Fitzpatrick

(Cavan): Deputy de Valera is obviously not at ease about Part V of the Bill, taken as a whole. Both of us agree that section 20 cannot be discussed without discussing section 29 because if we are to create an absolute offence, we must have some means of measuring the quantity of alcohol in the blood, and that means is provided in section 29, which provides for a compulsory blood test, carrying with it the offence and the penalties applicable to section 49 of the Principal Act which deals with drunken driving. There is no use in Deputy de Valera putting his mind at ease by advocating the breathaliser because the books from the British Medical Association and the Commission's Report are agreed that the breathaliser is not satisfactory, that it is not accurate.

Major de Valera

I am accepting that, on the average, it works.

Mr. T.J. Fitzpatrick

(Cavan): Deputy de Valera has suggested there should be the alternative open to the accused of having a blood test. I do not know whether it is possible to get the result of the breathaliser test there and then. If you cannot, there is certainly a grave drawback in that suggestion. I do not wish to go on repeating indefinitely what has been said before, but the object of everybody here is to try to get the impaired driver, the incapable and the drunken driver, off the road.

Mr. N. Lemass

Hear, hear.

Mr. T.J. Fitzpatrick

(Cavan): That is the common object of us all here. I am satisfied, the Commission were satisfied after deliberating on this from 1961 until 1963, after sending a study group to the Continent, after sending a study group to London, that the method suggested by me is adequate. The Commission so reported to the Minister and in arguing this case, I consider myself in the best company, the most responsible company.

Major de Valera

How far is the Deputy prepared to back the Commission?

Mr. T.J. Fitzpatrick

(Cavan): I am prepared to back the Commission in that respect.

Major de Valera

Is your Party going to vote for the amendment?

Mr. T.J. Fitzpatrick

(Cavan): I am prepared to back the Commission.

Major de Valera

Are you prepared to back it with a vote?

Mr. T.J. Fitzpatrick

(Cavan): I am prepared to go with the Commission all the way as far as this matter is concerned. I do not think Deputy de Valera was here at the time, but I gave the names of the members of the Commission this morning. They were most responsible people. They studied this matter carefully from 1961 until 1963 and so reported to the Minister. I also stated that, as recently as a few months ago, the President of the Safety First Association in this country approved without reservation of the recommendations already put forward.

It is wrong to put a man in the position of exposing himself to severe penalties and of having his means of livelihood taken away without his being in a position to know whether, in fact, he has violated the law or not. That is exactly what this section says. When you go on to section 29—we will deal with that in more detail when we come to it—you are going to have this compulsory blood test with severe penalties for not carrying it out. I wish to put on the record again that, as far as I know, there is nobody here as the advocate of the drunken or even the irresponsible driver, but I think there is a trend coming from the far side of the House for some time that we should change our whole legal system in this country, that gradually we should get away from the idea that the accused person has any rights and adopt the system acceptable in some Continental countries. I do not think we should I think that, by and large, the system of criminal law we have in this country since the foundation of the State has served its purpose well.

Mr. Booth

This is a question of scientific proof rather than mere opinion.

Mr. T.J. Fitzpatrick

(Cavan): It is not a matter of scientific proof.

Mr. Booth

It is a matter of scientific proof.

Mr. T.J. Fitzpatrick

(Cavan): After the event. It is a question of the person accused not being in a position to know whether what he is doing is right or wrong.

Mr. N. Lemass

And if he does not give evidence against himself he is committing an offence anyway.

Mr. T.J. Fitzpatrick

(Cavan): Exactly. If he refuses to submit to the test, he is guilty of another offence carrying the same penalties.

Mr. Boland

I agree that, if Deputy Fitzpatrick's amendment were to be accepted, technically the position would not be the same as it is now. At the same time, I maintain that the decision in these cases would eventually depend on the same type of evidence as is required for the offences that exist at present. I pointed out that the British Government's 1965 White Paper bore this out after three years' experience of the blood alcohol level being treated as prima facie evidence. The White Paper points out that conviction still depends to a large extent on the accused's manner of driving and his personal appearance and behaviour. If we are to take the specific blood alcohol level as being prima facie evidence only, the defence will fall back on evidence based on clinical examination, observation and behaviour, and the whole case will eventually be decided on the basis of that evidence. Therefore, I maintain that, in effect, the position will be roughly the same as it is at present, and that has been the experience in Britain.

With regard to Deputy Lemass's argument, I want to say that this offence is at least an equally serious offence, if not a more serious offence. It is not a lesser offence than the offence of driving while drunk. A person may have a lesser amount of alcohol consumed but may be a greater danger to himself and the public than the driver who is obviously drunk as at present understood.

Mr. T.J. Fitzpatrick

(Cavan): Surely that is an argument against the Minister?

Mr. Boland

I do not think so. I think the person who is not completely drunk but whose driving is impaired as a result of the consumption of alcohol will very likely be a greater danger and, therefore, be committing a greater offence than the person drunk and incapable. The person merely stimulated by the excessive consumption of alcohol rather than incapacitated is, in my opinion, a greater danger to the public.

Mr. T.J. Fitzpatrick

(Cavan): We are not dealing with drunkenness here but impairment.

Mr. Boland

I know, Deputy Lemass was arguing that this was a lesser offence. I say it is not and that, therefore, the same penalty is justified.

Mr. N. Lemass

I am only asking that the judge be given discretion.

Mr. Boland

If he should have discretion in a case like this, he should have it in the other case also. I maintain that this is at least an equally serious, if not a more serious offence.

With regard to the breathaliser test being accepted as conclusive evidence, as I said, we are not completely satisfied that the reliability of the breathaliser has been satisfactorily established yet, but it may be in the future. If it is, I certainly would prefer to have the breathaliser test as the conclusive one. But I do not think we are yet in a position in which we can do that. As Deputy de Valera said he is reserving his main argument for the appropriate section, which is the next one, I think we can wait until then.

Dr. Gibbons

I should like to be clear on one point. Assuming a man has a breathaliser test and he is informed he has over this percentage of alcohol in his blood, would he not be entitled to have a blood test afterwards?

Mr. Boland

Yes. I explained that earlier. The breathaliser test is only an indication to the garda as to whether or not he should bring the person to the station and require him to give samples of blood and urine. A charge cannot be based on the result of the breathaliser test.

Mr. N. Lemass

I am not entirely convinced or satisfied with the Minister's argument. I want to be able to feel that we are, in effect, maintaining the whole spirit and ideal of justice that has prevailed in this country and has worked well. While we all agree that the drunken driver is a menace who should be got off the road, I do not agree that simply by imposing penalties you are going to solve the problem. There is far more to be solved than that.

Progress reported: Committee to sit again.

The Dáil adjourned at 5 p.m. until 3 p.m. on Tuesday, 23rd May, 1967.