The Bill is primarily concerned with the offence of driving or being in charge of a vehicle while having a concentration of alcohol in the blood or urine, in excess of a prescribed limit. This law, which is commonly known as the "breathalyser" law, was first enacted by the Oireachtas in 1968, following a report by a commission established to examine the issue of driving while under the influence of drink or a drug. The 1968 Act has itself been amended on one occasion since then; its operation has more than once been suspended; procedures have been revised from time to time; regulations have been made and amended to meet changing circumstances and to deal with problems which emerged in specific court decisions. Nevertheless the Director of Public Prosecutions found it necessary some months ago once more to suspend the taking of proceedings under the existing legislation.
I am asking the House to consider urgently the proposals in the present Bill, which are designed to provide a substantial deterrent to those who feel they can continue to avoid the consequences of the criminal action of driving while their capabilities are impaired by drink or by drugs, and which will establish a clear framework within which those who wilfully break the law can be brought before the courts and punished appropriately.
I believe it would be of advantage to the House, and to the public, if I outlined more fully the background to the present situation.
Because "drunk driving" is a criminal offence, the Constitution requires that it can only be dealt with by the courts. It was a central theme of the 1968 breathalyser law, in order that the new principle would be acceptable to the people generally, that the protection afforded to the individual charged under it should be spelt out in the greatest detail possible. The Act and the regulations made under the Act, accordingly prescribed in great detail the procedures to be followed by the Garda, by medical officers called in to take blood or urine specimens, and by the Medical Bureau of Road Safety who carry out analysis of specimens of blood and of urine sent to them by the Garda. Even the equipment to be used—syringes, bottles, seals and so on—were subject to statutory regulation.
It is evident that court procedures as a consequence of these precautions have tended to centre on proof that the prescribed procedures and other matters were observed in every minute detail. The proofs sought in court included proof that the examining doctor was a registered medical practitioner; that the syringe used was actually supplied by the medical bureau; that the prescribed wording of the caution by the garda had been read to and understood by the defendant; that printed forms and certificates used in the course of a prosecution cited precisely the references to statutory matters and that the required procedures within the medical bureau were minutely observed.
The effects of what I have just briefly described were that an accused person found it possible to secure dismissal of prosecution often on a technicality, however trivial or almost frivolous, despite the availability to the courts of a certificate by the director of the medical bureau that the blood-alcohol level of the accused exceeded, and in many cases substantially exceeded, the prescribed limit. It could be inferred indeed, that the special protection afforded by the law to accused persons turned out to be a well-nigh unbreakable wall of total immunity from conviction.
During 1977, the incidence of dismissals of prosecutions and the apparent inequality of treatment of such cases by the courts became such that the Director of Public Prosecutions decided in October 1977 that no further proceedings under the existing breathalyser system would be initiated pending a review of the statutory position. That review has been carried out and the proposals now before the Seanad seek to amend the law accordingly. Review of the law has involved constitutional issues as well as examination of a great variety of court decisions on a multiplicity of points. In reviewing these matters it has been our endeavour to preserve appropriate safeguards for the individual consistent with the protection of the community as a whole.
The figures of road accidents and of road deaths continue to be of unacceptable, indeed frightening, proportion. The number of deaths had shown a very gradual decrease for some years, but now the trend is again upward. A high proportion of accidents involve drivers who have consumed an excess of alcohol. It is recognised that there are many reasons why accidents occur—speed, road and weather conditions, fatigue, mechanical failure, and so on. But we are concerned here with the type of case where a driver is not capable of exercising normal control for the reason that he is, be his own action, under the influence of alcohol, or a drug, or both alcohol and drugs, and that he therefore chooses to disregard the safety of other road users and of their dependent wives, husbands and children. I have no doubt that the public expect the Legislature to take strong action to curb this abuse; to produce an effective deterrent which will show that these actions cannot be tolerated or be pursued with impunity; and, where the law has found such persons guilty of an offence, to put them off the road.
Under the 1968 Act, the limit of blood-alcohol concentration, known as BAC, was set at 125 milligrammes of alcohol per 100 millilitres of blood. This limit is high by European standards and it is proposed to reduce it to a new limit of 100 milligrammes of alcohol to 100 millilitres of blood. In association with this change, it will also be an offence to drive or be in charge of a vehicle while exceeding an equivalent concentration of alcohol in the urine—the limit in this case will be 135 milligrammes of alcohol per 100 millilitres of urine. Urine testing will be available too where drugs or a combination of drugs and alcohol are in question.
We can all agree that a defendant must have the right to challenge evidence given to support any prosecution. But the law in its generosity to the individual should not be such, as has happened too frequently, that the courts quite often never came to consideration of evidence of the offence itself, but concentrated on such aspects as proof that procedures were observed in accordance with a formula of words spelt out in forms and other documents. This Bill seeks, in simple terms, to leave to the courts the function of adjudicating on evidence presented.
A major principle of the Bill is accordingly to remove from the law a number of requirements which oblige the Minister to prescribe details of matters which are not of evidential value. These include details of the procedures followed within the medical bureau. We must be mature enough to accept that eminently qualified medical personnel in the bureau carry out and certify blood or urine analysis at least as conscientiously as any qualified analyst elsewhere whose findings we can accept for the gravest of personal reasons without making an issue of their procedures or their qualifications. But in eliminating these details from the statute book, we must protect the right of the person charged to produce evidence, if he finds it possible to do so, in his own defence. To achieve this, the Bill provides that when a person gives a blood or urine specimen, he will be handed a sealed portion of that specimen, which he may have analysed independently. It will be open to him to present an independent analysis in court should he find this appropriate, and it will be for the court to decide the case on the evidence presented to it. This process will remove from the court proceedings consideration of many of the procedural matters formerly prescribed by statute, on which defences have relied in the past.
The commission on drunk-driving visualised the establishment of blood alcohol content by means of breath analysis. Breath analysis is not to be confused with the screening test, that is blowing into a tube or bag, by which the presence, but not the level, of blood alcohol can be indicated. The screening test if positive is, under existing law, followed by arrest and the subject is brought to the Garda station. That procedure is not affected by the Bill. The existing law enables the gardaí at the station to require a subject to undergo breath analysis or to give a blood specimen. Breath analysis has not so far been so used here.
Scientific developments since 1968 have produced different types of apparatus which are capable of measuring blood-alcohol concentration by breath analysis. This method has, indeed, been in use in Northern Ireland for some years. The apparatus can be used at the roadside or at a fixed point such as a police station. Examples of apparatus of this type are at present being tested in England. They are capable of giving both visual and print-out evidence of blood alcohol content. While no change in our law is necessary to enable such apparatus to be used at a garda station, the present law does not enable the Garda to use breath analysis at the roadside. The Bill would make provision for this contingency.
The mandatory disqualification from driving of a person convicted of excess alcohol concentration in his blood or urine will be retained and will apply to offences under this Bill, as will be the power of the courts to impose penalties or fines and/or imprisonment. The maximum fine is being increased to £500. The other amendments proposed do not affect the principles on which the present law is based.
Subject to enactment of the Bill, therefore, the following processes will apply to the offence of driving or being in charge of a vehicle while having an excess concentration of alcohol in the blood or urine, or being under the influence of a drug of a combination of drugs and alcohol:
(1) The existing roadside screening test will continue. This will normally be the first step taken by a garda.
(2) A person suspected of an offence may be arrested without warrant and brought to a Garda station for breath analysis or blood test.
(3) A person who is required to give a blood specimen may opt to give a urine specimen instead. Where a urine specimen is given, a concentration of alcohol in excess of 135 milligrammes of alcohol per 100 millilitres of urine will indicate that an offence had been committed. This relates to the concentration of 100 milligrammes of alcohol per 100 millilitres of blood.
(4) Breath analysis may be used by the gardaí at the roadside, as well as at a Garda station, which they are already entitled to do.
(5) Where drugs are suspected, or a combination of drugs and alcohol, a urine specimen may be required for testing.
(6) A person giving a blood or urine specimen will be obliged to comply with the requirements of the designated medical practitioner in attendance.
(7) When a doctor takes a blood or urine specimen, he will seal it in two portions one of which will be given to the subject, who may arrange for its independent analysis if he so wishes; the other portion will be sent to the medical bureau for analysis as to the concentration of alcohol in the blood or urine, the result of which will be communicated to the subject and to the Garda. The doctor will complete a certified statement as at present, authenticating the specimen as to the person, the time and place where it was taken, and so on.
(8) When the medical bureau have carried out their analysis in accordance with normal professional practice to establish blood or urine alcohol concentration, they will issue a certificate of their findings in a prescribed form. The Bill provides that the certificate of the bureau, which will be admissible in evidence, will be proof of compliance with statutory requirements.
(9) It will be an offence for a person not to comply with the instructions of a garda in relation to screening or testing procedures.
(10) The penalties on conviction will, as at present, include disqualification from driving and, at the discreation of the court, a fine up to £500 and/or imprisonment.
I earnestly hope that the House will give this Bill the urgent attention which is warranted in present circumstances.