On section 4, I presume that the Minister will make his orders as early as possible. Could he give us an assurance to that effect?
Road Traffic (Amendment) (No. 2) Bill, 1978: Committee and Final Stages.
Would the Senator repeat the question?
With regard to the commencement and the making of any orders that are to be made, would the Minister give the House an assurance that he will make the orders at the earliest possible moment?
I can assure the House that the order will be made immediately the Bill is enacted.
This is a drafting amendment changing "analysis" in the singular to the plural, "analyses".
May I just say that it is an indication of the difficult job that we have in trying to deal with a Bill like this when we get it within 24 hours of being asked to put it through the House, when the Government amendments stretch to the extent they do stretch to? I appreciate that it is a technical Bill but that is the reason why yesterday I asked the Minister to allow a review of this Bill in the autumn and I would be grateful if he would bear that in mind.
Again, this amendment is a drafting amendment. That is all that is involved.
Amendments 3 and 4 are related and amendments Nos. 5, 6, 8 and 9 are consequential, and may be discussed together.
I move amendment No. 3:
In subsection (2), page 4, line 37, to delete "100" and substitute "80".
There was a lot of discussion yesterday in the House as to the level of alcohol content in the blood and what level was acceptable and we have tabled an amendment to reduce the proposed limit of 100 to 80 and I think, in fairness, we should make it quite clear that we do not in any way want to adopt a "holier than thou" attitude about this. We tabled the amendment because of the reports that have appeared which indicate, certainly from the United States and the United Kingdom, that people with an alcoholic content in their blood in excess of 50 milligrammes per 100 millilitres are likely to have their driving ability impaired. Studies from Indiana University suggest that somebody who has an alcoholic blood content of 100, the proposed level in the Bill, is six or seven times more likely to have an accident than somebody who has not taken any drink at all. I accept that drink in that context is only one of many factors that cause accidents and I am quite prepared to withdraw the amendment if I am satisfied that 100 is an acceptable level. There was an argument against that yesterday in the sense that Senators said that they knew of cases where motorists had been found to be over the limit in a technical way and in fact were convinced they were quite capable of driving. I have personal experience of cases where the Garda were satisfied that somebody was capable of driving but nevertheless he was technically over the limit and consequently was convicted of the offence. That is the dilemma.
We tabled the amendment to have a discussion on this in an open way rather than any sort of an arrogant or dogmatic way but, having thought about it overnight. I wonder whether we could have some system whereby, for example, up to a level of 80 a person is quite clear: over a level of, say, 120 if somebody were found to have such an alcoholic content in his blood the evidence against him would be conclusive evidence; and in the case of somebody found to have between 80 and 120 that evidence would be prima facie evidence against him. If he could discharge the onus of proof we thrust upon him that he was capable of driving despite the fact that he had this level of alcohol in his blood he could not be convicted.
I do not know whether that is a practicable system. I understand that it is in operation in some states in the United States of America and perhaps the Minister would like to comment on that. If I thought there was room for negotiation on that in the Dáil, I would be quite happy to withdrawn this amendment.
What the Senator is suggesting is that we might consider a two-their type of structure which they have in other countries and in the North of Ireland, Denmark, Finland, Germany and Sweden also have this system. They vary from 50-150, 80-120. We had 125 in the previous Act. The average of those who were caught and convicted under that Act was around 200. We have lowered it now to 100 in an effort to create a balance between the deterrent effect—which is very important and we hope it will be the major effect of this Bill—and the convictions. Rather than introduce a two-tier type of structure which the Senator has suggested we think it will be more effective to lower it from 125 to 100 for those who are to be deterred and those who are convicted. We did consider this system and saw where it was operating in other countries where you have a less serious offence and a more serious offence.
That is not what I am talking about.
I know that but this is the way they operate it in some countries where the penalties vary between the lower and the higher. But after a lot of discussion at all levels it was decided that the lowering of the existing figure would be more beneficial with a view to making the legislation more effective.
I think 100 is the highest level anywhere in Europe. I am not sure of that but I do not know of any other country that has a higher level or a similar level to that. It seems unreasonable that in Great Britain it should be 80, or on the Continent it should be 80 and considerably lower in some countries, and that here we can tolerate it at 100. I accept that it should be brought down from 125 to 100 but I see that there are circumstances in which somebody with an alcoholic content in his blood of, say, between 80 and 100 might have his driving ability impaired and really that is what we are talking about. We are not concerned in any absolute sense about the alcoholic content in somebody's blood. We are concerned about the critical impairment so far as a person's driving is concerned and I am simply suggesting that we have 100 as the limit. If you are over 100 it is conclusive evidence that you are incapable of driving consistent with safety standards and must be convicted. I suggest, in order to keep it somewhat in line with Great Britain and with views that are definitely held right throughout the EEC countries, that where somebody is found to be between the level of 80 milligrammes and 100 milligrammes, that be prima facie evidence against him of his incapability of driving consistent with safety standards and that the onus of proof would be thrown on to him to prove that he was capable of driving.
I do not think there is anything absolutely scientific involved in either the figure of 100 or 80. One is trying here to reach a reasonable level and, quite frankly, if you are going to discuss it purely on the basis of an impairment of driving ability you might equally ask: why not make it 60? There might be a very logical argument in fact for making it a very low level indeed. We are trying to reach a reasonable compromise and I think that we are going to find that the level of 100 is, in fact, a very severe level. It will no longer be possible to go out and have more than a very few moderate drinks. If we were to lower it below 100 what we would really be saying would be: no drinking at all. This is a slightly different situation. I think that the figure of 100 is a very reasonable compromise in the circumstances.
I would not disagree with the proposition no drinking at all when it is put in the context of driving a motor car, particularly in modern traffic conditions. The ultimate objective of this legislation is to diminish, and hopefully totally end, the awful casualties that are taking place on the roads today. I do not think we could be too severe nor would the public object if we seem to be unduly severe or draconian in the limits that we provide. When we consider what we are trying to prevent, when we consider what is happening and, as everybody here has experienced—hopefully not at first hand but at second or third hand—the tragedy that drink and driving can bring to individual households. I do not think there is any argument about reducing the blood alcohol level to 80 and have it at least in line with our peers in the rest of Europe. Why should we announce to the rest of Europe that we are prepared to tolerate a higher level of alcohol in the blood of our drivers? What justification is there for that? Senator Conroy says the whole thing is a myth but at least let us be on the same level as Europe if for no other reason than our reputation, but I submit that is not the only reason. A far better reason is that the lower the level of permitted alcohol in the blood the less likelihood there is of damage being done to some unfortunate Irish citizen.
Taking existing levels in Europe, 80 is the more common one now. Denmark varies from 80 to 120, Finland——
On a graduated scale?
Yes, a two-tier system. The maximum is 150 for the more serious offence; Germany, 80 to 130, Sweden, 50 to 150. The country that has one level only is the United States, 100. We are not the highest of the known countries: we are level with the US. If you reduce it to 80 you are going to have a greater problem of enforcement of the law. You will have to have far more gardai involved to enforce than you would at 100.
Because naturally, many more people will be caught under the 80.
But, with respect——
It does not follow that they are incapable.
That is what I am trying to provide for.
It is said this morning in some papers that if you drink three pints you will be incapable under the 100 level. I did not relate it to the number of pints or "half-ones" at any stage but this is the way it seems to be coming over. If you lower it to 80, you will limit the person possibly to one-and-a-half pints. If you do, in my opinion, that amount of drink would not make a man incapable. That is my personal opinion now.
It might not, but it might in the special case that we want to avoid.
We know it varies from person to person. But we think that 100 is reasonable from both the deterrent point of view and the viewpoint of getting those who are incapable caught. We are not the lowest nor the highest; as I have said we are on a level with the US. We are lower than some European countries for the higher offence. We are lower than four of those for the more serious offence, much lower—in some cases 50 lower. In our opinion 100 is about right. It is worth a trial to see how we get on with this legislation. We cannot guarantee it will be any more successful than the previous legislation but it is something that can be amended again if it is not working properly.
Would the Minister not try first to operate from the conservative point of view and try on the lower level and if that does not work successfully or produces any administrative difficulties then consider going back up? Should our approach not be one of strictness having regard to the evil that we are trying to combat? Should we not approach it from a strictness point? That is the first point I have to make. The second point is that I do not take the Minister's argument that lowering it to 80 will put strains on the personnel enforcing it. Initially, it might mean that the courts will be busy. That is all. But as soon as the message gets across that 80 is being enforced and that 80 means very little if any drinking, I think the business the courts will have to do would become very small indeed and what the Minister wants to secure—the deterrent effect —will be secured much more speedily and effectively.
There is, obviously, a certain amount to be said for the limit of 80 and indeed many other countries have adopted it, but we should be clear in our minds as to what has been suggested. Do we want to say that you cannot take a drink at all and drive? There is a great deal of logic for that suggestion. But if so, the limit of 80 does not really satisfy us. But if you are going to say that somebody can take a drink with a meal—I mean a drink, not several drinks; that will not be possible—and that seems a reasonable proposition, then you have to decide on some level and 100 will satisfy that level but will still be extremely severe. If we are going to go much below the 100 I think the real logic is that we should say in no way are you allowed to drive if you have got alcohol. If one wants to be that severe, then I think one really needs to go below the 80. The 80 would not be sufficient.
I would thank Senator Conroy and the Minister for making the case for the suggestion I made. I am not for a moment suggesting anything about graded penalties so far as penalties or sanctions are concerned. We are talking here about—I shall accept the level of 100—anybody above 100 is incapable of driving. That is the proof of evidence in that regard. The Minister has accepted, Senator Conroy has accepted, that it is severe but there is a case to be made—and clearly I am not an expert in this. I assume that the Senator would know a lot more about it than I do. But taking them at their face value, and nobody has contradicted them, people have said: let us not be too harsh on ourselves. All I say is: is it not worth while considering providing in the measure that if somebody is between 60 and 100 or 80 and 100, whatever drink he has had, that is prima facie evidence against him but if, after that he can show that despite being between 60 and 100 he was capable of driving a car consistent with safety standards it shall be a defence? Surely that will solve the problem because the reality is that what we are concerned with is not simply in an absolute sense, as I have already said, the alcoholic content of somebody's blood; that means nothing. In its own way it is an indicator but of itself it is nothing.
I am suggesting that if it is going to be designed between 60 and 80 or 100, whatever it is to be, let us have some room to manoeuvre and let us say to somebody: "The position is that we take a blood sample and if we are satisfied that the alcoholic content in your blood is 84 or whatever it is you must then satisfy the court that you were capable of driving a car on the occasion in question".
I think, perhaps, the point of all this idea of having measurements of the alcohol level in the blood is surely so that we can have some objective standard and get away from the idea of a general debate as to whether or not the person is intoxicated and unable to drive and control a vehicle.
But yesterday you made the point of this absolute technicality about it and I agree with that. I think there is room for manoeuvre there somewhere and that is why I am suggesting this.
I think that once you go much below the 100 you are really getting into the situation in which you certainly would have, I think, a very logical case to say: we will not have anyone taking any alcohol at all and driving. Perhaps we shall have to bring in some such measure in due course. But if you are going to allow this drink programme you must have some sort of standard. It seems to me that 100 is a reasonable standard to set, as the Minister has suggested. Perhaps we will have to become even more severe in due course. Let us try this because it is a major change from 125 to 100 and at 125 by and large most lay people will probably agree that a person was drunk, that he was incapable of driving a car. We are now coming down to a level at which in relative terms many people will not consider that that person was drunk although at the suggested measure of the level of alcohol in his blood he will be convicted. This is very severe. I think we are really going towards the stage of saying "any alcohol at all".
It is obvious that this Bill will be a lawyers' paradise. The situation in relation to this is limited; there is no defined limit at which you can say a person is incapable. If there were we would all agree that that is the limit that should be in the Bill. Yesterday we spoke about habitual drugs and social drinkers and the difference in approach and the difference in the tolerance of both sections of people. So, there are various levels and there is no perfect level. When we speak about people being incapable, there are people incapable of driving at the moment driving around the city and there is no drink at all involved. There are more factors in question in regard to incapability in driving than were indicated by the Senator. I think that the limit laid down in the Bill is reasonable and must get a reasonable chance. It would be no harm to get an assurance from the Minister that if the limit is considered at some stage to be too high then he would seriously consider at the earliest possible moment rectifying the situation or reducing the limit. If the Minister is asked to give that assurance, it might satisfy the Senator.
I do not think it was the purpose of this Bill in the first instance to catch anybody out or inflict penalties on anybody. One of the main objects, I imagine, is to train people to see the disastrous consequences of overdrinking, but in order to make the idea workable certain limits must be indicated. As it is, according to my information the reduction from 125 to 100 milligrammes per 100 millilitres of blood has come as a great shock and it would be desirable that this legislation would be accepted in good grace by everybody concerned. If the figure was reduced to 80—and I am not against reducing it to 80 or even less—I can foresee great disquiet and a certain amount of antagonism toward this legislation. People will say: 100 was enough; why crucify us completely? That is a very important consideration in any Bill: it must be made acceptable. If a Bill is not acceptable to the public it will be very difficult to enforce it. All things taken into consideration, especially the figures given by the Minister himself which showed the tolerance in the case of Sweden between 50 at the lower level to 150 at the upper level, I think the figure of 100 is quite reasonable.
You can argue theories here until tomorrow morning and you would not have the perfect answer. I think that practicability if implementing the law is the criterion should be foremost in mind when you are thinking about setting levels. I totally disagree with Senator Molony when he said that we should leave more room for manoeuvre. We realise who would be doing the manoeuvring; it would be actually the biggest culprit who would be doing the most manoeuvring. If you leave room for manoeuvring and if you do not make throughly clear your intention to set a sensible, practical limit to which you can apply the rigour of the law and which is generally accepted, you can go overboard. I certainly think that you have to be practical here and if you have a reasonable, sensible basis for it, you will get more people to accept the law when it is passed. There will be situations where people will be convicted and representations will be made on hardships of the family and the hardships of a man losing his driving job, and all of this will be part of the whole follow-up to the new Bill. Therefore, as my friend Senator Cranitch says, it is very important that the public understand that there is a reasonable approach from the Minister, the Department and from everybody concerned. I think that you could add difficulty to the Bill if you go down to 80 as suggested. You can certainly accept that in some cases 80 would be too much and you could go lower, but you must strike a fair balance that is accepted by the general public. I think that the Bill is an improvement and that the limit of 100 is a reasonable level.
There is clearly no support for reducing this to 80 and, with the consent of the House, I will withdraw my amendment. I am sorry that it was not accepted. There are people who might be incapable of driving even though they might be beneath the level of 100. However, perhaps the Minister will consider it in the future.
I would make one point with regard to the person who is below 80 or even 30. Under section 49 of the 1968 Act, now re-enacted in section 10, if the gardaí believe that a person is incapable of driving—even though he does not register the required 100—he can be charged and brought to court on the clinical evidence that existed under the previous Act. He is not necessarily free to drive if he is incapable just because he does not register 100.
Amendments Nos. 5 and 6 have been discussed.
Will the Minister say whether with regard to blood or urine testing the motorist would have the opportunity to have an independent test carried out himself? When the breath analyser comes into use, is there any way that a motorist will be able to have some independent means of assessing his position? What is the position of a breath sample in that respect?
He will be handed a sealed sample and he can go to an independent analyst. I am speaking of a blood sample.
That is the position with regard to blood or urine sampling, but I understood that it is hoped to introduce a system of breath sampling that, rather than having the breathalyser as a screening test it, in itself, will be a conclusive indicator of the alcoholic content in the blood. Is there any way that a motorist will be able to have it checked independently himself?
He will be entitled to opt for a blood or urine test and can have it independently analysed.
That is not the point. The result of the breath test that the gardaí carry out would be conclusive evidence of his guilt.
That situation would arise. Provision is made for that on the apparatus known as the alcometer which is being used in Northern Ireland at present, which registers and records. It would not arise where what is known as the "bag" is concerned. On the introduction of this type of apparatus the person would opt for blood or urine testing and have it independently analysed. The only people who would have this apparatus would be the gardaí. It registers and records the results.
With respect to the Minister, if somebody is going to be tested on this machine, there is no question of a doctor being called in to have a blood sample taken. Has the motorist any way of contesting the results of the State analysis?
Section 15 (2) (b) states:
It shall be a good defence to a prosecution for an offence under this section to show that, as soon as practicable after the refusal or failure, the defendant offered to permit a designated registered medical practitioner to take from him a specimen of the defendant's blood.
If the Minister prefers I will deal with the matter under that section. I am talking about somebody who undergoes this breath analysis test. What is his position? For example, if I am stopped and I undergo the breath analysis test and it is discovered that I am over the limit, is there any possible way I can defend proceedings?
The person will be given a copy of the reading of the apparatus. If he refuses the blood or urine test this will be produced in court as evidence and they will decide.
This is the problem. As I read the Bill, unless I have misread it, if somebody is breath analysed and the print-out is produced, there is no obligation on the gardaí to have a urine or blood sample or even look for one. A person can be convicted on the result of the breath analysis test alone, as I read the Bill. If somebody who believes he is quite sober is stopped by the gardaí and undergoes the breath analysis test and if the print-out shows he is above the limit, the gardaí have no obligation to take a blood test or to call a doctor.
Having received this print-out and if the person believes himself to be sober surely he can go the doctor and have a blood sample taken?
At 11 p.m. it might be extremely difficult to do that. This is a very serious charge against somebody and I accept that we have to deal with this in a severe way but I do not regard that as a practical way out at all. Even if the person goes to a doctor there can be no evidence whatever as to the continuity of events—a very important matter when it comes before the court. There is only one way out of it, as I would see it, and that is on taking a breath analysis test where somebody is found to be over the limit, then a doctor must be called by the gardaí and a blood or urine sample must be taken. We are taking the right of decision-making from our courts. There is only one defence a motorist has and that is to give his sample so that it can be analysed independently and there can be a contest about it subsequently in court if it transpires that there is a difference between the two results. As I read the Bill, there is no provision made at all for somebody who on the breath analysis test is found to be over the limit. That is intolerable.
Surely there are other possibilities here? If I understand it correctly, the Senator is saying that there is no defence at all. Surely there are possible defences if the person concerned does not consider that the meter is adequate or that that type of apparatus does not work?
Under the Bill the motorist is going to have to prove that that breath analysis machine was wrong. How is he going to do that?
If the person refuses the print-out which he will be handed, and if the gardaí are of the opinion that the man is incapable of driving, he can immediately have a blood test——
If he does not refuse it?
In the North of Ireland people are being convicted on the print-out alone. The Senator probably realises that if a person is brought in at 11 p.m. and believed to be incapable because of excess alcohol, it may not be very easy to find a doctor, as experience has taught us. We are out to make this Bill effective and to get rid of a lot of the prescribed procedures which existed in the last Act which led to the fact that it became ineffective and had to be suspended. This is working successfully where the alcometer is used in the North of Ireland. That is the nearest example I can give the Senator. The alcometer is not in use here yet. It could have been in use long before this new Bill because the provision was made for that type of apparatus in the 1968 Act but it has not been used as yet.
What the Minister is now telling the House is that for a person to have a defence, he is going to have to refuse some of the requirements under the Bill. I am talking about somebody who in straightforward fashion goes in and undergoes this test and accepts the certificate. He has no way of contesting it afterwards.
He can get himself analysed independently and he can produce this in court, as has happened. He can produce the evidence in court and let the court decide.
That would not be conclusive evidence. It would not even be reasonable evidence because, first he must go and find a doctor and he would have to do it within a reasonable time. I do not know what sort of time limit would be acceptable. We are putting a person in a very invidious position. I think that the fair way to deal with this is where somebody is found to be over the level as a result of the breath analysis machine, a doctor should be called. The gardai should call a doctor and take a blood sample which the person could have independently examined.
Is the Senator suggesting that the machine would give false reading or be used improperly or something like that?
There are all sorts of possibilities. This is the whole problem. When the onus of proof is on the State, they would have to show that the machine was in order. I accept that in the vast majority of cases the machine would be correct. I am not suggesting for a moment that anybody is going to abuse this. But remember that an individual is being put in a position where he cannot defend himself except by refusing to follow the requirements of the legislation. If the onus of proof were on the State to show that the machine was all right, I would accept that. I would sit down here quite happily. But where the onus of proof is put on to a defendant to show that the machine was incorrect, that is an impossible onus to discharge. How would he know what is wrong with the machine in question? It is because of this shift of onus of proof that I am sticking to this so hard.
The apparatus or the alcometer is not given conclusive evidential value. It is not as compared with the blood test. The blood test is given such value but the alcometer is not given conclusive evidential value. The person who is being proceeded against can produce his or her own evidence.
Would you say it is the same as section 49 of the 1968 Act?
There is no provision in the Bill which provides that it is conclusive.
There is a provision which says that it is an offence if you are over the limit.
There is no provision which provides it is conclusive.
It is conclusive in this sense. That evidence is as conclusive as the evidence that a person's blood sample shows an alcohol content in excess of 100 milligrammes.
It is not binding on the court.
The reality is that there is no way of contesting the evidence. There is in relation to the blood sample because you have an independent blood sample which you can have analysed but not in relation to the breath analysis machine. That is the only point I am making.
There is nothing to prevent this person or persons from going off and getting independent blood tests. There is nothing to stop them producing their own evidence. This evidence is not binding on the court.
Would the Minister then tell me why they provided in relation to the blood and urine samples that a urine sample be given to the person there at the station? Why was that done at all?
Surely there is a totally different situation here. In one you have an apparatus from which you get an immediate print-out. If the person concerned believes he is not drunk he can take steps to contest the matter. In the question of taking a blood sample, there your have something which is not going to be analysed immediately and it is only correct and proper that two samples be provided so as to make certain that no error or confusion has occurred during the prolonged procedure between the sample being obtained and the actual result coming back to the interested parties. With the print-out you are immediately in a position to take steps to contest it if you so wish but you are not in that situation with a blood or urine sample. Therefore there is a different situation and you must have two samples, one for each party.
The whole matter is pretty well worn out. To be quite frank, I am horrified at this section.
It was in the 1968 Act.
If I had been given this Bill a month ago and had time to go through it properly and read all the old legislation, I would be quite happy about that. That is not a valid argument, because it is not true to say that a person has time to do it. There is a limitation on it. If I were to go out and an hour and a half later get a doctor—it is extremely difficult to get a doctor at that hour at night—the State's case immediately is that I had sobered up two hours later, that I went off and had a meal before I saw the doctor. It is worn out. It is a very serious matter when you shift the onus of proof on to people. You must allow for some independent way of enabling such persons to defend their case and they are being denied that in this instance. It might end up in the High Court on a constitutional basis and that would be worth a lot more to the lawyers.
I do not think they are being denied a second chance of defending themselves. Surely if the breath machine—let us call it that for want of a better name—registers that they are over the limit and they dispute that, they have the alternative of having a blood or urine test and that will show conclusive evidence one way or the other as to whether they are above or below a certain level. I think that is a fair, reasonable and logical means of verifying what they dispute to be incorrect otherwise.
I agree totally with what Senator de Brún has said, if that were the case, but unfortunately there is no obligation on the gardaí to bring a doctor and get a blood sample taken. I would go with him the whole way. That is exactly what I am looking for.
Let the person get the doctor. He is the person who is disputing.
It is a most unreasonable attitude to take. If somebody is in that situation and he cannot get a doctor the Senator is acknowledging that he is being denied his rights.
I am not acknowledging anything. I am saying that the option is there for the person charged to get the doctor or not.
If the person cannot get a doctor, what does he do?
That is a situation that one cannot account for.
I was a bit puzzled when I read section 13 and subsequent sections. Section 13 is the one where an obligation is imposed on the arrested person to permit a sample of blood to be taken or to provide a specimen of urine. There is a choice there. Then when I read section 17 I see that where a person is arrested he does not seem to have any choice—the requirement there is to provide a sample of urine. I am puzzled as to why the second provision is in the Bill.
Section 17 provides where there is a suspicion of drugs only. It does not apply to the blood test.
I would like to ask a question on the section. This is the section that provides that where somebody suggests that he had consumed intoxicating liquor after the time of the alleged offence but before a specimen was taken, that evidence should be disregarded unless the person can show that at the time of the alleged offence the alcoholic content in the blood was below the permitted level. I want to ask the Minister how a person could prove that?
It is there since 1968. It is to prevent the frustrating of a prosecution, where a person could take a drink out of his pocket and take that drink.
That is not the question I asked. Subsection (2) is the crucial one. It states:
Where, on the hearing of a charge for an offence under section 49 or 50 of the Principal Act, evidence is given by or on behalf of the defendant that, after the time when the offence is alleged to have been committed but before the taking of a specimen under section 13, 14 or 17, he had consumed intoxicating liquor, the court shall disregard that evidence unless satisfied by or on behalf of the defendant (a) that but for that consumption the concentration of alcohol in the defendant's blood (as specified in a certificate under section 22) would not have exceeded a concentration of 100 milligrammes of alcohol per 100 millilitres of blood, or...
How would a defendant prove that? What conceivable way could he prove that?
A defence was offered the time the 1968 Act was brought in and it has never been a bone of contention in the courts.
That is not the question I asked. The person is given the defence if he can prove a certain thing. I am asking the Minister how it is possible that he proves on the technical basis that the alcoholic content in his blood was below the permitted level. How could it be done?
If the person can prove it the court would go along with it.
But how could he prove it? What I am actually saying is this—it is the greatest cod of a defence that I have ever seen anywhere because it is incapable of proof in a realistic sense. I am just wondering whether the Minister and his Department can give any indication as to how somebody might go about proving such a thing.
He would have to give evidence as to what he drank in between and a doctor's evidence would be involved in this as well. It is not impossible, I would say, but its difficulty is what the Senator was talking about. But it is possible.
I do not think so. One has to prove on a technical basis — and it is on the technical basis that one is asked to do it — that the alcoholic content in the blood was less than 100 milligrammes. If I went in and said I had 25 pints or one pint or no pint it would be no indication at all of what the alcoholic content in my blood was on a technical basis.
Presumably the main purpose of this is to prevent any avoidance. It does genuinely happen that people are perhaps sometimes mistakenly given brandy at the scene of a road accident and if that person subsequently had a blood sample taken and it was agreed that the level in that sample was, shall we say, 102 milligrammes per 100 millilitres that would be above the 100 milligrammes. However, that person would be able to produce lay or medical evidence that, in fact, he had taken brandy and I do not think it would be beyond the powers of an analyst to suggest that such and such quantity of alcohol would be capable of increasing the blood level by that 2 milligrammes: in other words, that there was some evidence that but for the drinking of that brandy he would have been below the 100 milligrammes per 100 millilitres. He would certainly be able to put forward some case, I would imagine, on technical grounds.
Unfortunately the commission on drunken driving which sat some years ago have an entire chapter on how unreliable it is to rely on the evidence suggested by Senator Conroy simply because of the fact that everybody is affected in different ways depending on his condition and on how he feels.
We are talking of something else. We are talking about something very specific here, evidence that there has been consumption of a certain amount of alcohol at a given time and whether or not it is possible that that would move to a level above the 100, granted that one knows the exact level already. Clearly if the level was, shall we say, 150 there is no way that one could indicate that it could possibly have risen, but if you have a marginal case in which a person is just about at the limit and if you have evidence that that person has been given alcohol, it is certainly more than reasonable that he should have a case to present. What the Senator is referring to regarding the commission is just in general terms and is quite irrelevant to this.
The problem as I see it is that this is a matter to be judged by a court and, unfortunately, the way the section is worded it would not enable a court, in my view, to have the discretion that Senator Conroy suggests. I am not suggesting for a moment that the blackguard who has a half bottle in his pocket to knock back when the guard comes should be protected. There is always the situation where someone is given brandy, or indeed where a drug is administered to somebody, that might have the effect of driving the alcohol content in his blood up above the limit.
There is a possibility to demonstrate this without leaving a loophole for the blackguard.
In my view the defences given there are completely and utterly incapable of proof unless somebody lying at the side of the road who is given brandy or a drug insists on a doctor first taking two samples of blood, one for him and one for the gardaí, so that it may be analysed later.
This provides for the procedure at Garda stations regarding specimens. This is the main thing that is being changed. The opportunities that solicitors or barristers got in the past to go through the regulations item by item are being denied them in the future, and properly so. I have no doubt about that. I would hope that the Minister or the Department of Justice have within the Garda force very definite and stringent regulations as to how this procedure is to take place. I know this is not a matter which will be open to question in open court from now on unless a defendant can show that an improper procedure was adopted and prove it himself. Where such responsibility is being given to the Garda I have no doubt that they will discharge their responsibilities to the best of their ability as they have always done in the past. They have a very heavy responsibility and every effort should be made to ensure that there will be no room for mistakes or errors of judgement in this area.
Although it is not prescribed, a set procedure will be followed.
These are purely drafting amendments.
I should like to mention that subsection (3) (b) should read: "Road Traffic Act, 1968," instead of "of the 1968 Act,".
I would like to make one final comment and that is to urge the Minister to keep this legislation under very close review because of the inadequate opportunity we have had to examine all that is in it. I accept that it is an urgent measure and needs to be put through. I hope that, as we have facilitated him in getting it through quickly, he will facilitate us and allow us to look at the legislation further in the near future and have an opportunity in the autumn to re-examine it. It affects important areas of our laws as far as public safety and the rights of the individual are concerned.
As I indicated yesterday, I agree to do this. I would like again to thank the House for facilitating me in getting this measure through at such short notice and for their very worth-while contributions. We all hope that this Bill will work. If it does not, we will have to amend it again to ensure that it will have the desired effect.