We are delighted with the opportunity afforded to us to address the committee and thank it most sincerely for it. The Minister for Transport is to be complimented on bringing forward this legislation and we acknowledge the trojan work of Department of Transport officials in drawing up the Road Traffic Bill 2009. We appreciate that very much. However, the section on mandatory testing at collision scenes falls far short of what is required. This section is about saving lives and if done properly, it will be the greatest deterrent to drink driving.
Since its inception in 2006, PARC Road Safety Group has campaigned for the introduction of legislation for the compulsory testing of all drivers at collision scenes, whether killed or surviving. The statistical proof that little testing was being done, especially the testing of surviving drivers, was only produced at the end of 2009.
The Role of Alcohol in Fatal Collisions in Ireland 2003-2005 by Bedford et al showed that only 8% of surviving drivers involved in fatal collisions were tested but that 65% of dead drivers were tested. Many surviving drivers are escaping detection and walking from the scene of fatal collisions, although uninjured. The dead drivers are tested under coroner’s legislation and it is not unreasonable to suggest that the 35% of dead drivers who are not tested for alcohol survive for some time after the collision, in which case they come under the Road Traffic Act and the required testing for alcohol and drugs is not being carried out on their arrival at accident and emergency where the hospital procedure should take place. The road traffic law is letting us all down.
Dr. Bedford's study made no reference to the drivers who survived those fatal collisions and who, in some cases at least, must have been responsible for the fatalities. Dr. Bedford reviewed the files again and further research showed that 92% of surviving drivers were not tested for alcohol. Clearly, the current Road Traffic Act does not ensure that all the forensics are gathered in regard to drink driving and as a result we do not have a true picture of the role of alcohol in serious collisions in Ireland. What we have is a gross underestimate.
Section 10 of the Road Traffic Act 2002, which amended section 12(1) of the 1994 Act, gave the Garda three distinct and separate powers. A garda could test a driver who was involved in a collision or who in his or her opinion had consumed intoxicating liquor or who had committed an offence under the Road Traffic Act. These powers were differentiated by the little word "or" and were very clear. In section 2 of the Road Traffic Act 2003, which amended section 12(1) of the 1994 Act, the little word "or" was dropped. This disempowered the Garda in such a way that it was now a prerequisite for a member of the force to form an opinion before any testing for alcohol could be done even where a fatal collision occurred.
We have proof of this in many cases, one of which occurred in 2004. In this collision a pedestrian was killed. The deceased was tested for alcohol and drugs and his toxicology report was clear. The driver responsible for his death, although uninjured, was not tested for alcohol or drugs. A garda statement in the case revealed that he did not test because he formed the opinion that the driver was not under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle. Therefore, a garda is asked to form an opinion that a driver has consumed alcohol to such an extent as to be incapable of proper control of a vehicle even where there is serious injury and fatalities. This, we are informed by senior officers, is done by observation. How in God's name can a garda tell if a person is over the present legal limit of 80mg, much less the new legal limits of 50mg or 20mg, by observation alone? I suggest that even a sniffer dog could not do that. This is a ridiculous and unworkable requirement, not only in the case of lower legal BACs but where a driver is unconscious, in shock, hysterical, etc. Unless the driver is plastered, it is impossible for a member of the Garda Síochána to form such an opinion by observation alone.
This unnecessary burden placed on the Garda Síochána has led to the most unsatisfactory legal outcomes personally experienced by PARC members, where the surviving driver involved in the fatal collision which killed their loved one was allowed to walk away from the crash scene uninjured and untested for alcohol and drugs.
Present and past legislation has failed PARC members with even more hurt heaped upon them. What we find in this Bill is more of the same. The vital little word "or" is again missing and the ineffectual, burdensome "forming an opinion" is again included.
The word "may" is used throughout the section. The use of this word "may" reduces any power to a discretionary power, which has no place in mandatory testing. Where the word "shall" is used to test an uninjured driver involved in a serious collision, there is an opt-out clause so that he or she too can slip the net.
The final nail in the coffin of mandatory testing is found in section 8(2), which states, "A member of the Garda Síochána shall not make a requirement of a person under subsection (1)(b) where, in the opinion of the member, the person is incapable of complying with the requirement as a consequence of the person’s involvement in the event.” This last statement is ambiguous, is open to many interpretations and is another discretionary power.